Freeleagus v Nominal Defendant

SUPREME COURT OF QUEENSLAND

CITATION:

Freeleagus v Nominal Defendant [2007] QCA 116

PARTIES:

DAMIEN MYLES FREELEAGUS
(plaintiff/respondent)
v
NOMINAL DEFENDANT
(defendant/appellant)

FILE NO/S:

Appeal No 9528 of 2006
DC No 3393 of 2003 

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

5 April 2007

DELIVERED AT:

Brisbane

HEARING DATE:

23 March 2007

JUDGES:

Williams and Keane JJA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal allowed
2. Judgment in favour of the plaintiff set aside and plaintiff's action dismissed
3. Plaintiff to pay appellant's costs of the action and of the appeal

CATCHWORDS:

TORTS - NEGLIGENCE - APPORTIONMENT OF RESPONSIBILITY AND DAMAGES - APPORTIONMENT IN PARTICULAR SITUATIONS AND CASES - where plaintiff suffered personal injury after colliding with motor vehicle stopped on highway - where liability apportioned between plaintiff and driver of stopped vehicle - whether driver of stopped vehicle was negligent

FAI General Insurance Co Ltd v Curtin [1997] QCA 241; (1997) Aust Torts Reports 81-442, considered

Rains v Frost Enterprises Pty Ltd [1975] Qd R 287, applied

Suncorp Insurance and Finance v Fitchett [1997] QCA 104; (1997) 25 MVR 479, considered

COUNSEL:

M T O'Sullivan for the appellant
P J Goodwin for the respondent

SOLICITORS:

DLA Phillips Fox for the appellant
Bartels for the respondent 

1. WILLIAMS JA:  I have had the advantage of reading the reasons for judgment of Keane JA.  I agree with all that he has said therein and with the order he has proposed.

1. KEANE JA:  On 27 November 2000 at about 2.45 pm, the plaintiff was driving his motor vehicle in a generally south-easterly direction on the Pacific Highway at Loganholme when he collided with the rear of an unregistered motor vehicle which was stopped and protruding partly into the right-hand lane of the three south-bound lanes.  The plaintiff's vehicle then spun into the middle lane and collided with another motor vehicle.  As a result, the plaintiff suffered personal injuries.  The unregistered vehicle had shortly before been driven by Ms Anya Daniels to the right-hand side of the highway after the right-hand front tyre of her vehicle deflated.

1. After a trial of the plaintiff's action for damages for personal injuries, the learned trial judge apportioned liability 70/30 in favour of the plaintiff.

1. The appellant argues that the learned trial judge erred in holding that negligence on Ms Daniels' part contributed to the occurrence of the accident at all.  Alternatively, the appellant attacks the learned trial judge's apportionment of liability.  I will discuss the issues which arise on the appeal after first setting out the facts as found by the learned trial judge.

The facts

1. Ms Daniels' right front tyre deflated in circumstances which involved no fault on her part.[1]  The steering of the vehicle became very heavy and difficult.[2]  Ms Daniels moved her vehicle parallel to and as close as possible to the concrete barrier which separated the north…