Harris v McDonald, FAI General Insurance Co Ltd

[1996] QCA 364

IN THE COURT OF APPEAL	[1996] QCA 364
SUPREME COURT OF QUEENSLAND

Appeal No. 283 of 1995

Brisbane

[McDonald and FAI v. Minister for Emergency Services]

BETWEEN:

SUSAN LEE HARRIS

(Plaintiff)

AND:

DONALD JOHN McDONALD

(First Defendant) First Appellant

AND:

FAI GENERAL INSURANCE COMPANY LIMITED

(Defendant by Election) Second Appellant

AND:

THE MINISTER FOR EMERGENCY SERVICES by and through
THE BEAUDESERT LOCAL AMBULANCE COMMITTEE

(Second Defendant) Respondent

Fitzgerald P.
Davies J.A.

Lee J.

Judgment delivered 01/10/1996

Judgment of the Court

APPEAL DISMISSED WITH COSTS

CATCHWORDS:	CIVIL - negligence - personal injury - motor vehicle accident - apportionment of negligence - discretion of trial judge in determining apportionment of liability.
Counsel:	Mr. R. Myers for the first appellant and second appellant Mr. T. Matthews for the respondent
Solicitors:	Gadens Ridgeway for the first appellant and second appellant Quinlan Miller & Treston for the respondent
Hearing Date:	25 September 1996

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 283 of 1995

Brisbane

Before Fitzgerald P.
Davies J.A.
Lee J.

[McDonald and FAI v. Minister for Emergency Services]

BETWEEN:

SUSAN LEE HARRIS

(Plaintiff)

AND:

DONALD JOHN McDONALD

(First Defendant) First Appellant

AND:

FAI GENERAL INSURANCE COMPANY LIMITED

(Defendant by Election) Second Appellant

AND:

THE MINISTER FOR EMERGENCY SERVICES by and through
THE BEAUDESERT LOCAL AMBULANCE COMMITTEE

(Second Defendant) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 1st day of October 1996

This is an appeal against a judgment given in the Supreme Court in an action for damages for

personal injuries arising out of a collision between two motor vehicles. The plaintiff was a passenger

in a Nissan four wheel drive vehicle being driven by the first appellant in an uphill and roughly northerly

direction on the Canungra-Mount Tamborine Road. The respondent was or represented the owner of an ambulance vehicle being driven in the opposite direction. The vehicles collided head on. The only

question before the learned trial Judge was that of negligence and his Honour apportioned it as to 80%

to the ambulance driver and 20% to the first appellant. The first appellant contends in this Court that,

in effect, it was not open to the learned trial Judge to find negligence against him; apportionment of

liability in this way involves an individual choice or discretion as to which there may be differences of

opinion by different minds and is not lightly reviewed: Podrebersek v. Australian Iron and Steel Pty.

Ltd. (1985) 59 A.L.J.R. 492 at 493-4; Tamwoy v. Solomon C.A. No. 76 of 1995 judgment delivered

12 September 1995 unreported at 4-5.

The road on which the collision occurred had a narrow bitumen surface with faded white lines

on each side at a distance of about half a metre in from the bitumen edge. The bitumen was, as his

Honour found, about five metres or slightly more in width. On each side of the bitumen surface there

was then a verge consisting of grass, gravel and other matter upon which a vehicle could be driven, at

least at low speeds.

The vehicles involved were both very wide. The Nissan four wheel drive was 2.1 metres in

width and the ambulance 2.2 metres. They could therefore have passed one another on the bitumen

surface but probably only at very low speeds. The road surface at the relevant time was wet and

slippery because it had been raining a short time before.

The accident occurred on a curve in the roadway which was to the right in the first appellant's

line of travel at an angle of between 45 and 60 degrees. The line of sight around the curve was such

that neither driver would have seen the other until they were about 50 metres or a little less apart.

The accident occurred, as the learned trial Judge found, substantially on the first appellant's side

of the road. The finding of negligence against the first appellant was on the basis that he drove too close

to the centre of the road in conditions in which it was unsafe to do so. We think it was open to his
Honour to so conclude.

The first appellant was familiar with the road. He travelled on it frequently. He ought to have

known that two vehicles such as his own and another of about the same width could not safely pass one

another on the bitumen surface of the road if they were both travelling at the speed at which he was

travelling before he saw the ambulance, that is at approximately 45 kilometres per hour. Nevertheless

immediately prior to seeing the ambulance he was travelling at that speed and with the driver's side of

his vehicle about in the middle of the road in circumstances in which his visibility was limited and the

road surface was slippery. The accident occurred in a very short space of time, despite the first

appellant's evasive action. It was open to his Honour to conclude, in our view, that his speed and

position on the roadway contributed to the circumstances which led to the collision.

His Honour was therefore entitled to conclude that the first appellant was negligent in driving

at that speed and in that position on the roadway when his vision ahead was so restricted and that that

negligence was a cause of the collision. Once that conclusion is reached the apportionment cannot be

disturbed.

The respondent filed a notice indicating his intention to contend that the apportionment should

be varied in his favour but did not pursue that contention.

The appeal should be dismissed with costs.