Freeleagus v Nominal Defendant

DISTRICT COURT OF QUEENSLAND

CITATION:

Freeleagus v Nominal Defendant [2006] QDC 368

PARTIES:

DAMIEN MYLES FREELEAGUS
(plaintiff)

v

NOMINAL DEFENDANT
(defendant)

FILE NO/S:

BD3393/03

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

11 October 2006

DELIVERED AT:

Brisbane

HEARING DATE:

29 – 31 August 2006

JUDGE:

Ryrie DCJ

ORDER:

Judgment for the plaintiff against the nominal defendant for the sum of $50,709.00.

The plaintiff’s costs to be paid by the nominal defendant in accordance with the applicable scale, to be assessed on a standard basis.

CATCHWORDS:

DAMAGES - PERSONAL INJURIES – motor vehicle accident – whether collision was caused by the defendant – whether defendant created a dangerous situation in bringing her motor vehicle to a halt partly protruding into right-hand lane on highway – whether defendant is in breach of s177 of the Transport Operations (Road Use Management – Road Rules) Regulations 1999

DAMAGES - PERSONAL INJURIES – whether the collision was caused by or contributed to by the plaintiff.

Transport Operations  (Road Use Management – Road Rules) Regulations 1999 s 177

COUNSEL:

Mr P Goodwin for the plaintiff

Mr M O’Sullivan for the defendant

SOLICITORS:

Ralph Bartels for the plaintiff

Phillips Fox for the defendant

Introduction

1. The plaintiff (Mr Freeleagus) has sued to recover damages for personal injuries sustained by him when, on 27^th November 2000, at or about 2.45pm, the right front part of his motor vehicle struck the left rear part of a motor vehicle which was left parked partly in the right hand lane of a three southbound lane highway.

1. The driver of that vehicle (Ms Daniels) had left her vehicle in that position after she had experienced a flat tyre as she was travelling south in the right hand lane.

1. Ms Daniels had parked the vehicle parallel and as close as she could get it near the concrete barrier which separated the respective north and southbound carriageway, after she had experienced difficulty with the steering (as a result of the flat tyre).

1. She also told an investigating police officer that she couldn’t change lanes to get across to the left and stop as there was too much traffic at the time.

1. The Plaintiff was travelling south in the middle lane along the highway on his way to work. The rear of the defendant’s vehicle, with its hazard lights illuminated, faced the southbound traffic and about ½ metre of the width of that vehicle projected into the right hand lane.

1. The Plaintiff, who had been travelling in the middle lane at approximately 100 kph in moderate traffic, first saw the defendant’s vehicle only after he has moved into that lane in order to pass a car which had been travelling directly in front of him in the same lane.

1. It was only after the Plaintiff had moved into the right lane. that he realised that the defendant’s vehicle was in fact stationary and he then attempted to swerve to avoid hitting it.

1. He had not noticed that the hazard lights had…