Foster v Claybourn's Discount Tiles P/L - [2010] QDC 290

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 4

Ahadizad 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, cited

Personal 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…

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: [2010] QDC 290
Decision Date: 30 July 2010

CaseChat Overview and Summary

In the matter of Foster v Claybourn's Discount Tiles P/L, the plaintiff, Foster, pursued a claim for personal injuries sustained in a motor vehicle accident. The accident occurred when the defendant's vehicle, driven by one of their employees, collided with Foster's vehicle. The defendants contested liability, asserting that their driver's collision with Foster's vehicle was caused by a temporal lobe seizure, a diagnosis made only after the accident. The court was tasked with determining whether the defendants' driver was negligent and if a "wrongful act or omission" had occurred, considering the evidence indicating the driver retained some control of the vehicle.

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.

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 4 Ahadizad 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, cited Personal 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