DISTRICT COURT OF QUEENSLAND
CITATION:
Foster v Claybourn’s Discount Tiles P/L & Anor [2010] QDC 290
PARTIES:
MICHELLE LEE FOSTER
(plaintiff)v
CLAYBOURN’S DISCOUNT TILES PTY LTD
(first defendant)and
SUNCORP METWAY INSURANCE LIMITED
(second defendant)FILE NO:
BD 1116 of 2009
DIVISION:
Civil jurisdiction
PROCEEDING:
Claim for damages for personal injuries
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
30 July 2010
DELIVERED AT:
Brisbane
HEARING DATE:
15 – 17 June 2010
JUDGE:
Robin QC DCJ
ORDER:
1. Judgment for plaintiff in the sum of $71,300.
CATCHWORDS:
Motor Accident Insurance Act 1994, s 5(1)
Civil Liability Act 2003, s 59, s 61, s 62
Civil Liability Regulation 2003, schedule 3, schedule 4Ahadizad v Emerton (2002) 35 MVR 388; [2002] ACTSC 20, considered
Carty & Carty v Parnell and Anor (as Executors) [1992] QCA 112, considered
Carrier v Bonham & Anor [2000] QDC 226, applied
Clark v Hall [2006] QSC 274, considered
Cook v Bowen & Anor [2007] QDC 108, cited
Dowsing v Goodwin [1997] NSWCA 95, considered
K & S Freighters Pty Ltd v Nelmeer Hoteliers Pty Ltd (2001) 33 MVR 467, considered
Gillett v The Queen (2006) 46 MVR 429; [2006] NSWCCA 370, considered
Lafranchi v Transport Accident Commission [2006] 14 VR 359, distinguished
Leahy v Beaumont (1981) 27 SASR 290, considered
Jones v Dunkel (1959) 101 CLR 298, cited
Imbree v McNeilly (2008) 248 ALR 647, cited
Miller v Council of the Shire of Livingstone [2003] QCA 29, considered
NSW Insurance Ministerial Corporation v Jones [1994] NSWCA 244, applied
Roberts v Ramsbottom [1980] 1 All ER 7, considered
Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; 170 ALR 594, considered
Scholz v Standish [1961] SASR 123, distinguished
Piening v Wanless (1968) 117 CLR 498, citedPersonal injuries suffered by plaintiff in motor vehicle accident – defendants’ approaching vehicle moved to its incorrect side of road – defendants denied liability on basis that cause of accident was their driver’s suffering a temporal lobe seizure, a diagnosis made months afterwards – whether negligence of driver shown – whether “wrongful act or omission” shown – evidence showed driver retained some degree of control of vehicle
COUNSEL:
J Sewell for the plaintiff
R Green for the defendants
SOLICITORS:
Trilby Misso Lawyers for the plaintiff
Eardley Motteram solicitors for the defendants
[1] Both liability and quantum are in issue in this claim for personal injuries arising from a motor vehicle accident that occurred about 7.40 a.m. on 1 December 2006 on Saltwater Road on the northern outskirts of Maryborough. The plaintiff was a 24 year old driving to work at Big W in Maryborough who had got barely 200 metres from her mother’s place where she was residing at the time with her three year old daughter (in consequence of an earlier motor vehicle accident the previous September in which she had been injured as a passenger) when a head-on collision with the first…
Keep reading for free
Create a free CaseChat account to read Foster v Claybourn's Discount Tiles P/L and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2010] QDC 290
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the defendants could be held liable for the accident. The defendants argued that the seizure absolved them of responsibility, given that their driver's ability to control the vehicle was compromised. The court had to assess the evidence of the driver's partial control over the vehicle and weigh it against the seizure claim. The court considered whether the driver's actions or lack thereof constituted a breach of duty, leading to the accident.
The court found that the evidence demonstrated the driver retained some degree of control over the vehicle, which was inconsistent with a complete loss of control due to a seizure. The court held that the driver's actions, or lack thereof, constituted a breach of duty of care. Given that the driver's vehicle was on the wrong side of the road at the time of the collision, the defendants were held liable for the accident. The court concluded that the defendants' negligence directly caused the accident, and they were liable for the plaintiff's injuries.
In light of the findings, the court ordered judgment in favour of the plaintiff in the sum of $71,300. This sum compensated the plaintiff for the personal injuries and other losses resulting from the accident. The court's decision underscored the importance of establishing the cause of an accident and the need for drivers to maintain control of their vehicles, particularly when approaching intersections.
Orders
Orders of the court
1. Judgment for plaintiff in the sum of $71,300.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.