Garside v Rohan

Case [2018] QSC 295

SUPREME COURT OF QUEENSLAND

CITATION:

Garside v Rohan & Ors [2018] QSC 295

PARTIES:

GLENN STUART GARSIDE

(plaintiff)

v
DAN ROHAN

(first defendant)
TREVOR JAMES MILES
(second defendant)
JEFF ROBERTSON
(third defendant)
QBE INSURANCE (AUSTRALIA) LTD ABN  78 003 191 035
(fourth defendant)
NOMINAL DEFENDANT ABN 65 207 831 553

(fifth defendant)

FILE NO:

Rock No 499 of 2017

DIVISION:

Trial Division

PROCEEDING:

Trial

DELIVERED ON:

11 December 2018

DELIVERED AT:

Brisbane

HEARING DATE:

30 August 2018; 3 to 5 September 2018

JUDGE:

Davis J

ORDER:

1.   The claim against each of the first, second, third and fourth defendants is dismissed.

2.   Judgment for the plaintiff against the fifth defendant in the sum of $723,761.64.

3.   The parties be heard on costs.

CATCHWORDS:

EVIDENCE – ADMISSIBILITY – OPINION EVIDENCE – EXPERT OPINION – BASIS OF OPINION – where the first to fourth defendants sought to lead evidence of a mechanical engineer – where that evidence related to the possibility of the accident occurring as pleaded – where the observations in the report of the engineer were based on unproven assumptions – where the report was not delivered in accordance with the Uniform Civil Procedure Rules or the relevant Practice Direction number 2 of 2005 – whether the evidence should be excluded – if so, on what grounds the evidence should be excluded

EVIDENCE – ADDUCING EVIDENCE – WITNESSES- GIVING EVIDENCE – CROSS-EXAMINATION – AS TO WHAT – PRIOR INCONSISTENT STATEMENTS – where the plaintiff was cross-examined about statements he made about the accident from which he claimed injury to investigators against a written statement he made – where the plaintiff’s counsel required the tender of that written statement – whether counsel cross-examining was obliged to tender the statement – whether counsel should be ordered to tender the statement

INSURANCE – MOTOR VEHICLES – COMPULSORY THIRD PARTY INSURANCE AND LIKE SCHEMES – UNIDENTIFIED VEHICLE – WHERE IDENTITY OF VEHICLE CANNOT BE ESTABLISHED OR ASCERTAINED – where the plaintiff sued jointly three possible drivers, their insurer and the Nominal Defendant – where the Nominal Defendant pleaded that it was an identifiable vehicle insured by that insurer – where the Nominal Defendant later conceded it was not one of four identified vehicles but maintained that it was another vehicle insured by the insurer – whether the vehicle was an identifiable vehicle – whether the insurer or the Nominal Defendant was liable

Civil Liability Act 2003 (Qld) s 9, s 60
Evidence Act 1977 (Qld) s 19, s 101
Motor Accident Insurance Act 1994 (Qld) s 31, s 52

Uniform Civil Procedure Rules 1999 (Qld) r 423, r 429

Allianz Australia Insurance Ltd v Mashaghati [2018] 1 Qd R 429, considered
Attorney-General for the State of Queensland v Colin Lovitt QC [2003] QSC 279, cited
Commissioner of Taxation v Everett (1980) 143 CLR 440, applied
Lee v Chai [2013] QSC 136, not followed
Meandarra Aerial Spraying Pty Ltd & Anor v GEJ Geldard Pty Ltd [2013] 1 Qd R 319, considered

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AGLC
Garside v Rohan [2018] QSC 295
Case
[2018] QSC 295
Decision Date

CaseChat Overview and Summary

The case of Garside v Rohan involves a personal injury claim initiated by Mr. Garside against several defendants, including potential drivers of the truck involved in the accident, their insurer, and a Nominal Defendant. The primary dispute revolves around the identity of the vehicle responsible for the accident and the admissibility of expert opinion evidence. Additionally, there are issues concerning the cross-examination of the plaintiff and the insurer's liability.

The court had to determine whether the expert opinion evidence provided by a mechanical engineer should be admitted, considering that the engineer's observations were based on unproven assumptions and the report was not delivered according to the Uniform Civil Procedure Rules. Furthermore, the court assessed whether counsel was obliged to tender a prior inconsistent statement of the plaintiff during cross-examination. The court also needed to decide on the identity of the vehicle involved in the accident and whether the insurer or the Nominal Defendant was liable.

The court ruled that the mechanical engineer's report should be excluded as it was based on unproven assumptions and not delivered in compliance with the rules. The court also directed the cross-examining counsel to tender the prior inconsistent statement of the plaintiff, which became Exhibit 6. Regarding the identity of the vehicle, the court found that the vehicle was not one of the four identified vehicles but concluded that it was another vehicle insured by the insurer. Consequently, the insurer remained liable.

The court dismissed the claims against the first to fourth defendants. It ordered judgment in favour of the plaintiff against the fifth defendant in the sum of $723,761.64. The court also directed that the parties be heard on the matter of costs.

Orders

Orders of the court

1. The claim against each of the first, second, third and fourth defendants is dismissed.

2. Judgment for the plaintiff against the fifth defendant in the sum of $723,761.64.

3. The parties be heard on costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Garside gave no evidence that he noticed any signage on the back of the truck.[31][31]At 2-9.Mr Mooney’s evidence Mr Mooney was called by Mr Diehm QC. There seems no doubt that Mr Mooney was driving the Emerald Coaches bus, which was between the green truck and Mr Garside’s motor vehicle at the time of the accident. Mr Mooney collected passengers at Emerald at about 6.10 am.[32] He then drove those passengers to the Crinum Mine site and in doing so, drove through the spot where Mr Garside was injured.[33] That spot was about 6.6 kilometres from Emerald.[34] Consequently, Mr Mooney could not have been at the accident site before 6.15 am at the earliest.[32]Evidence of Robert Mooney: Transcript of the trial at 3-138. [33]At 3-138.[34]Agreed road distances schedule, exhibit 8. Mr Mooney’s route caused him to turn off the Gregory Highway at Lilyvale Road, about 16 kilometres north of Emerald.[35] He followed the green truck up to that point. As he turned off the highway, the green truck continued north. [35]Agreed road distances schedule, exhibit 8; Evidence of Robert Mooney: Transcript of the trial at 3-138. While Mr Mooney noticed a motorcycle (obviously the one ridden by Mr Garside) in his rear vision mirrors, he did not see anything fall from the truck, nor did he see what became of Mr Garside.[36][36]Evidence of Robert Mooney: Transcript of the trial at 3-136 and 3-137. As to the identity of the truck, Mr Mooney said:“Now, with respect to the truck that was in front of you, did you at any stage, as you travelled in and behind and near this truck, see anything in terms of signs or symbols that indicated to you what truck it was?‑‑‑Basically the colouring.The colouring. And what did you see of its colour?‑‑‑It was a green tank-type system with a white chassis.Okay. And what sort of truck was it?‑‑‑A rigid-type truck, single – I presume – sorry. I’m not sure whether it was a twin-axle or a single-axle with a tanker on it – just a cab over-type set-up.All right. Now, as you turned into Lilyvale Road, did you look again towards the truck?‑‑‑I did.And did you see anything on the truck to identify ‑ ‑ ‑?‑‑‑I ‑ ‑ ‑ ‑ ‑ ‑ to you what – whose truck it was?‑‑‑I did notice it was a JJ Richards truck with gold signing down the side of the truck.Did you, whilst you were behind the truck, notice anything about the mudflaps of the truck?‑‑‑No.Do you recall as to whether or not you saw any signage on the back of the truck when you were behind it?‑‑‑To be honest, no. I – I just don’t remember.You don’t remember?‑‑‑No.”[37][37]At 3-137. Mr Morton carefully cross-examined Mr Mooney about the interactions he had with the police investigating the accident and with office staff of Emerald Coaches who had passed on information to him from the police. That information was that it was believed that the truck involved in the accident was a JJ Richards truck.[38] The point of this cross-examination was to provide a foundation for Mr Morton’s later submission that Mr Mooney had fallen victim to the power of suggestion, the seed having been sowed by the police that the truck was a JJ Richards truck. In particular:“Yeah. That’s what this person, the office staff, said to you, that the concrete had come off the back of a JJ Richards truck?‑‑‑Yes.That was the first you’d ever thought it was a JJ Richards truck, wasn’t it?‑‑‑No. The reason I noticed it was a JJ Richards truck was because it had slowed us – slowed me down. I was just wondering what the truck was.So it was just the fact that the truck was going at 90, 95?‑‑‑Correct. Yes.That’s the only reason you thought it was a JJ Richards truck?‑‑‑Yes.”[39][38]At 3-139 to 3-140.[39]At 3-140.

Decision

Reasons for decision

The document on which Mr Morton cross-examined was not a document used by the witness to refresh his memory. It was a prior statement and the cross-examination made the statement admissible. For those reasons I directed Mr Morton to tender the document. It became Exhibit 6. Conclusion THE ORDERS OF THE COURT ARE:1.The claim against each of the first, second, third and fourth defendants is dismissed.2.Judgment for the plaintiff against the fifth defendant in the sum of $723,761.64.3.The parties be heard on costs.

Ratio Decidendi

Legal Principle Established

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