Habig v McCrae - [2013] QSC 335

SUPREME COURT OF QUEENSLAND

CITATION:

Habig v McCrae & Ors [2013] QSC 335

PARTIES:

JOHANNES BAPTIST HABIG
(plaintiff)
v
IAN ALLAN McCRAE
(first defendant)
JWB HOLDINGS PTY LTD (ACN 101 841 338)
(second defendant)
AAI LIMITED (ABN 48 005 297 807)

(third defendant)

FILE NO:

SC No 65 of 2012

DIVISION:

Trial

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

6 December 2013

DELIVERED AT:

Cairns

HEARING DATES:

14 – 18 October 2013

JUDGE:

Henry J

ORDERS:

1.    Judgment for the plaintiff in the sum of $400,000.

2.    I will hear the parties as to interest and costs.

CATCHWORDS:

TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – LIABILITY OF DRIVERS OF VEHICLES – FAILURE TO LOOKOUT – EXCESSIVE SPEED – where the plaintiff suffered a serious head injury when the van he was travelling in was struck by the first defendant’s truck on the Bruce Highway – where the plaintiff claims damages for personal injury and consequential loss caused by the negligence and or breach of duty of the first defendant – where the plaintiff alleges the first defendant failed to keep a proper lookout and was travelling at an excessive speed in the circumstances – where the defendants deny any negligence on the part of the first defendant – whether the first defendant owed the plaintiff a duty of care – whether the first defendant exercised a reasonable standard of care

TORTS – NEGLIGENCE – MISCELLANEOUS DEFENCES – OTHER DEFENCES – VOLUNTARY ASSUMPTION OF RISK – where the defendants allege the plaintiff voluntarily assumed the risk of injury by knowingly travelling in a vehicle that was in a dangerously unreliable condition, failing to move the van off the highway, failing to warn oncoming traffic of the stationary van on the highway and failing to remove himself from the area of danger – whether the plaintiff voluntarily assumed the risk of injury

TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – PARTICULAR CASES – ROAD ACCIDENT CASES – where the defendants submit there should be a 100 percent reduction in damages by reason of contributory negligence – where the plaintiff submits no finding of contributory negligence should be made – whether the plaintiff was contributively negligent

TORTS – NEGLIGENCE – APPORTIONMENT OF RESPONSIBILITY AND DAMAGES – APPORTIONMENT IN PARTICULAR SITUATIONS AND CASES – PRINCIPLES AND MODE OF APPORTIONMENT – where the apportionment involves a comparison of the culpability and causal contribution of the acts of the plaintiff and the first defendant – whether responsibility and damages should be apportioned between the plaintiff and the first defendant

Civil Liability Act 2003 (Qld), s 9, s 11, s 12, s 13, s 14, s 23, s 24
Motor Accident Insurance Act 1994 (Qld)

Jones v Dunkel (1959) 101 CLR 298, cited
Lawes v Nominal Defendant [2007] QSC 92, distinguished
Manley v Alexander (2006) 223 ALR 228, considered
Pledge v Roads & Traffic Authority (2004) 78 ALJR 572, cited
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59…

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.

Continue reading Habig v McCrae

Details

AGLC: Habig v McCrae [2013] QSC 335
Case: [2013] QSC 335
Decision Date: 6 December 2013

CaseChat Overview and Summary

Habig v McCrae is a case involving a serious head injury suffered by the plaintiff when the van he was travelling in was struck by a truck driven by the first defendant on the Bruce Highway. The plaintiff seeks damages for personal injury and consequential loss, alleging that the first defendant was negligent in failing to keep a proper lookout and in driving at an excessive speed. The first defendant denies any negligence. The defendants also argue that the plaintiff voluntarily assumed the risk of injury by travelling in a dangerously unreliable vehicle and by not moving the van off the highway or warning oncoming traffic. They further contend that the plaintiff's damages should be reduced by 100 percent due to contributory negligence.

The legal issues before the court were whether the first defendant owed the plaintiff a duty of care, whether the first defendant exercised a reasonable standard of care, whether the plaintiff voluntarily assumed the risk of injury, and whether the plaintiff was contributorily negligent. The court had to determine whether the first defendant's actions constituted negligence and whether the plaintiff's actions contributed to the injury. The court also had to consider whether the first defendant's liability, if any, should be apportioned with the plaintiff's contributory negligence.

The court found that the first defendant owed the plaintiff a duty of care and that this duty was breached by the failure to keep a proper lookout and by driving at an excessive speed. The court rejected the defence of voluntary assumption of risk, finding that the plaintiff's decision to travel in the van did not constitute an assumption of the risk of injury. The court also found that the plaintiff was not contributorily negligent. The court held that the first defendant was solely responsible for the accident and that damages should not be apportioned. The court awarded the plaintiff damages in the sum of $400,000 and noted that it would hear the parties as to interest and costs.

Orders

Orders of the court

1. Judgment for the plaintiff in the sum of $400,000.

2. I will hear the parties as to interest and costs.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Habig v McCrae & Ors [2013] QSC 335
PARTIES:	JOHANNES BAPTIST HABIG (plaintiff) v IAN ALLAN McCRAE (first defendant) JWB HOLDINGS PTY LTD (ACN 101 841 338) (second defendant) AAI LIMITED (ABN 48 005 297 807) (third defendant)
FILE NO:	SC No 65 of 2012
DIVISION:	Trial
PROCEEDING:	Claim
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	6 December 2013
DELIVERED AT:	Cairns
HEARING DATES:	14 – 18 October 2013
JUDGE:	Henry J
ORDERS:	1. Judgment for the plaintiff in the sum of $400,000. 2. I will hear the parties as to interest and costs.
CATCHWORDS:	TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – LIABILITY OF DRIVERS OF VEHICLES – FAILURE TO LOOKOUT – EXCESSIVE SPEED – where the plaintiff suffered a serious head injury when the van he was travelling in was struck by the first defendant’s truck on the Bruce Highway – where the plaintiff claims damages for personal injury and consequential loss caused by the negligence and or breach of duty of the first defendant – where the plaintiff alleges the first defendant failed to keep a proper lookout and was travelling at an excessive speed in the circumstances – where the defendants deny any negligence on the part of the first defendant – whether the first defendant owed the plaintiff a duty of care – whether the first defendant exercised a reasonable standard of care TORTS – NEGLIGENCE – MISCELLANEOUS DEFENCES – OTHER DEFENCES – VOLUNTARY ASSUMPTION OF RISK – where the defendants allege the plaintiff voluntarily assumed the risk of injury by knowingly travelling in a vehicle that was in a dangerously unreliable condition, failing to move the van off the highway, failing to warn oncoming traffic of the stationary van on the highway and failing to remove himself from the area of danger – whether the plaintiff voluntarily assumed the risk of injury TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – PARTICULAR CASES – ROAD ACCIDENT CASES – where the defendants submit there should be a 100 percent reduction in damages by reason of contributory negligence – where the plaintiff submits no finding of contributory negligence should be made – whether the plaintiff was contributively negligent TORTS – NEGLIGENCE – APPORTIONMENT OF RESPONSIBILITY AND DAMAGES – APPORTIONMENT IN PARTICULAR SITUATIONS AND CASES – PRINCIPLES AND MODE OF APPORTIONMENT – where the apportionment involves a comparison of the culpability and causal contribution of the acts of the plaintiff and the first defendant – whether responsibility and damages should be apportioned between the plaintiff and the first defendant Civil Liability Act 2003 (Qld), s 9, s 11, s 12, s 13, s 14, s 23, s 24 Motor Accident Insurance Act 1994 (Qld) Jones v Dunkel (1959) 101 CLR 298, cited Lawes v Nominal Defendant [2007] QSC 92, distinguished Manley v Alexander (2006) 223 ALR 228, considered Pledge v Roads & Traffic Authority (2004) 78 ALJR 572, cited Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59…