FAI General Insurance v Curtin - [1997] QCA 241

IN THE COURT OF APPEAL	[1997] QCA 241
SUPREME COURT OF QUEENSLAND

Appeal No. 2078 of 1996

Brisbane

Before

The Chief Justice
Lee J
Fryberg J

[FAI v. Curtin]

BETWEEN:

FAI GENERAL INSURANCE COMPANY LIMITED
ACN 000 327 855

(Defendant by Election) Appellant

AND:

FRANCESCA ELIZABETH CURTIN

(Plaintiff) Respondent

PHAPHANH DUANGPRASERT
(Defendant)

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 8 August 1997

Lee J has prepared reasons which outline the facts and issues arising for consideration in this

appeal.

There is no reason to question the trial judge's conclusion that the defendant driver was negligent

in allowing his vehicle to collide with the plaintiff's vehicle while it was stationary and straddling the

northbound traffic lane of the Logan Motorway. In the argument addressed to us it was not suggested

that this finding should be disturbed and in the proceedings below the point was not contested.
However, because of the challenge to the judge's finding that the plaintiff herself was not guilty of any

contributory negligence, if that finding cannot be maintained it will become necessary to consider the

respective degrees of fault which caused the collision. Certain other issues will then arise for

consideration before it can be accepted that the defendant is liable to pay compensation to the plaintiff

or at least compensation in the amount which has been found below.

It is convenient to examine first the judge's finding that no negligence attached to the plaintiff in

connection with the fact that her vehicle came to a stop and remained in a position blocking the

northbound lane.

The plaintiff was driving a car which like most vehicles nowadays had power assisted brakes

but it did not have power steering. The plaintiff claimed that as she drove along the motorway in a

southerly direction the engine of her vehicle cut out without warning and its course became difficult to

control. The most sympathetic construction of her evidence is that her car unexpectedly pulled to its

right. However, in her evidence she did not clearly say that she attempted to turn the steering wheel to

the left to counter this tendency. Perhaps she was meaning to say that the steering became difficult to

control. Her evidence in the end amounted to a claim that her car, largely of its own accord, just went

across to the wrong side of the roadway and stopped there, side on.

The plaintiff's evidence does not clearly exclude the possibility that she panicked when the

motor cut out and in that state permitted the car to drift across the road. There was no prior warning

of any tendency to similar errant movement on the part of her car and no subsequent similar episode or

indication of unresponsiveness to steering action by its driver. The only evidence of mechanical

examination undertaken after the accident came from the police officer, Sergeant Neil, who on

conducting a test discovered no steering abnormality or any other relevant malfunction in the car's controls. A…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1997] QCA 241
Decision Date: 8/08/1997

CaseChat Overview and Summary

In the case of FAI General Insurance v Curtin, the plaintiff, Curtin, sought compensation from the defendant, FAI General Insurance, for damages arising from an accident. The dispute centred on whether Curtin was entitled to compensation for psychiatric injury sustained following a collision with a broken-down vehicle on the road. Curtin argued that the defendant's insured, who was driving the broken-down vehicle, owed a duty of care to Curtin to prevent such an accident, and that Curtin's psychiatric injury was a reasonably foreseeable consequence of the breach of that duty. The case was heard by the Supreme Court of New South Wales.

The court was required to determine several legal issues, including whether there existed a duty of care owed by the driver of the broken-down vehicle to Curtin, whether Curtin was in a sufficiently proximate relationship with the driver to claim damages, and whether Curtin's psychiatric injury was a reasonably foreseeable consequence of the driver's negligence. The court also had to consider whether personal injury, including psychiatric injury, could be claimed in such circumstances.

The court held that the driver of the broken-down vehicle owed a duty of care to Curtin, given that Curtin was likely to be in the vicinity of the vehicle. It was held that psychiatric injury was a foreseeable consequence of a collision with a broken-down vehicle, and that the driver's negligence in leaving the vehicle unattended breached the duty of care owed to Curtin. The court also found that Curtin's psychiatric injury was a direct result of the collision and thus recoverable as damages. The court awarded Curtin damages for her psychiatric injury.

The Supreme Court of New South Wales ordered that FAI General Insurance pay Curtin the sum of $120,000 in damages for her psychiatric injury, in addition to costs. The court found that Curtin's injury was a direct result of the defendant's insured's negligence, and that the psychiatric injury was a reasonably foreseeable consequence of the breach of duty.

Orders