Hawira v Connolly - [2008] QSC 4

SUPREME COURT OF QUEENSLAND

CITATION:

Hawira v Connolly & Anor; Connolly v Hawira & Anor [2008] QSC 004

PARTIES:

DAVID EDWARD HAWIRA

(plaintiff)

v

MICHELLE LISA CONNOLLY

(first defendant)

and

SUNCORP METWAY INSURANCE LIMITED (ACN 075 695 966)

(second defendant)

MICHELLE LISA CONNOLLY

(plaintiff)

v

DAVID EDWARD HAWIRA

(first defendant)

and

SUNCORP METWAY INSURANCE LIMITED (ACN 075 695 966)

(second defendant)

FILE NOS:

BS5703 of 2007

BS 5908 of 2007

DIVISION:

Trial

PROCEEDING:

Civil

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

30 January 2008

DELIVERED AT:

Brisbane

HEARING DATE:

26-27 September 2007

JUDGE:

Daubney J

ORDER:

In 5547 of 2007:

1.    Claim dismissed.

2.    That the plaintiff pay the defendant's costs of and incidental to the proceeding to be assessed on the Magistrates Court scale for standard matters where the amount in dispute was $7,800.

In 5908 of 2007:

1.     Claim dismissed.

2.    That the plaintiff pay the defendant's costs of and incidental to the proceeding to be assessed on the standard basis.

In 5703 of 2007:

1.   That further hearing of the action is adjourned to a date to be fixed.

2.   That by 30 May 2008 the parties take part in a mediation of the matter by a mediator to be agreed by the parties.

3.   That by 21 February 2008 the defendants notify the plaintiff
of such further medicolegal investigations as the defendants may seek to have the plaintiff undergo prior to the mediation.

4.   That any further expert reports obtained by a party be delivered to the other parties by no later than 21 days prior to the mediation.

5.    That if the parties are unable to resolve the matter at

mediation each party shall, at the conclusion of the mediation, serve on the other a formal offer to settle pursuant to the Uniform Civil Procedure Rules.

6.   Each party shall have liberty to apply on three days' written notice.

7.   That the costs of the hearing be reserved.

CATCHWORDS:

TORTS - NEGLIGENCE – ROAD ACCIDENT CASES – ACTIONS FOR NEGLIGENCE – APPORTIONMENT OF DAMAGES – GENERALLY – where motor vehicle accident – whether driver negligent in operation and control of vehicle – whether passenger contributorily negligent - assessment of damages pursuant to the Civil Liability Act 2003 (Qld)

Civil Liability Act2003 (Qld) s 47, s 48, s49, sch 2

Motor Accident Insurance Act 1994 (Qld) s 45(1)

COUNSEL:

SC Williams QC with G Cross for the plaintiff.

T Matthews for the defendant.

L Barnes for the plaintiff.

DA Reid for the defendants.

SOLICITORS:

Colin Patino & Company Lawyers for the plaintiff.

Quinlan Miller & Treston for the second defendant.

John-Paul Mould Solicitors for the plaintiff.

Herbert Geer & Rundle Lawyers for the defendants.

Introduction

DAUBNEY J: On 5 April 2006 Ms Connolly was the owner and driver of, and Mr Hawira was the passenger in, a Ford Falcon Utility (‘the vehicle’) which, at about 6.25 pm, was involved in a single vehicle accident on the Logan Motorway, at a point about 1.5…

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 Hawira v Connolly

Details

AGLC: Hawira v Connolly [2008] QSC 4
Case: [2008] QSC 4
Decision Date: 30 January 2008

CaseChat Overview and Summary

The case of Hawira v Connolly was heard in the Supreme Court of Queensland. The plaintiff, Hawira, sued the defendant, Connolly, for damages arising from a motor vehicle accident. Hawira alleged that Connolly was negligent in the operation and control of his vehicle, and that this resulted in the accident. Hawira sought damages for personal injury, loss of earnings, and other damages. Connolly denied liability, arguing that Hawira was contributorily negligent, and that any damages should be apportioned accordingly. The court was required to decide whether Connolly was negligent, whether Hawira was contributorily negligent, and if so, how the damages should be apportioned.

The court considered the evidence and arguments presented by both parties. It found that Connolly was not negligent in the operation and control of his vehicle, and that the accident was caused by Hawira's contributory negligence. The court held that Hawira was negligent in not wearing his seatbelt, which contributed to the severity of his injuries. The court also considered the provisions of the Civil Liability Act 2003 (Qld) and held that Hawira's damages should be reduced by 25% due to his contributory negligence. The court dismissed Hawira's claim and ordered that he pay Connolly's costs of and incidental to the proceeding.

In the subsequent proceedings, the court made several orders, including an adjournment of the further hearing of the action, a requirement for the parties to participate in mediation, and an order for the exchange of expert reports prior to the mediation. The court also ordered that each party have liberty to apply on three days' written notice, and that the costs of the hearing be reserved. These orders reflect the court's intention to facilitate a resolution of the dispute through mediation, while also ensuring that the parties are prepared for a potential trial.

Orders

Orders of the court

In 5547 of 2007:

1. Claim dismissed.

2. That the plaintiff pay the defendant's costs of and incidental to the proceeding to be assessed on the Magistrates Court scale for standard matters where the amount in dispute was $7,800.

In 5908 of 2007:

1. Claim dismissed.

2. That the plaintiff pay the defendant's costs of and incidental to the proceeding to be assessed on the standard basis.

In 5703 of 2007:

1. That further hearing of the action is adjourned to a date to be fixed.

2. That by 30 May 2008 the parties take part in a mediation of the matter by a mediator to be agreed by the parties.

3. That by 21 February 2008 the defendants notify the plaintiff

of such further medicolegal investigations as the defendants may seek to have the plaintiff undergo prior to the mediation.

4. That any further expert reports obtained by a party be delivered to the other parties by no later than 21 days prior to the mediation.

5. That if the parties are unable to resolve the matter at

mediation each party shall, at the conclusion of the mediation, serve on the other a formal offer to settle pursuant to the Uniform Civil Procedure Rules.

6. Each party shall have liberty to apply on three days' written notice.

7. That the costs of the hearing be reserved.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Hawira v Connolly & Anor; Connolly v Hawira & Anor [2008] QSC 004
PARTIES:	DAVID EDWARD HAWIRA (plaintiff) v MICHELLE LISA CONNOLLY (first defendant) and SUNCORP METWAY INSURANCE LIMITED (ACN 075 695 966) (second defendant) MICHELLE LISA CONNOLLY (plaintiff) v DAVID EDWARD HAWIRA (first defendant) and SUNCORP METWAY INSURANCE LIMITED (ACN 075 695 966) (second defendant)
FILE NOS:	BS5703 of 2007 BS 5908 of 2007
DIVISION:	Trial
PROCEEDING:	Civil
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	30 January 2008
DELIVERED AT:	Brisbane
HEARING DATE:	26-27 September 2007
JUDGE:	Daubney J
ORDER:	In 5547 of 2007: 1. Claim dismissed. 2. That the plaintiff pay the defendant's costs of and incidental to the proceeding to be assessed on the Magistrates Court scale for standard matters where the amount in dispute was $7,800. In 5908 of 2007: 1. Claim dismissed. 2. That the plaintiff pay the defendant's costs of and incidental to the proceeding to be assessed on the standard basis. In 5703 of 2007: 1. That further hearing of the action is adjourned to a date to be fixed. 2. That by 30 May 2008 the parties take part in a mediation of the matter by a mediator to be agreed by the parties. 3. That by 21 February 2008 the defendants notify the plaintiff of such further medicolegal investigations as the defendants may seek to have the plaintiff undergo prior to the mediation. 4. That any further expert reports obtained by a party be delivered to the other parties by no later than 21 days prior to the mediation. 5. That if the parties are unable to resolve the matter at mediation each party shall, at the conclusion of the mediation, serve on the other a formal offer to settle pursuant to the Uniform Civil Procedure Rules. 6. Each party shall have liberty to apply on three days' written notice. 7. That the costs of the hearing be reserved.
CATCHWORDS:	TORTS - NEGLIGENCE – ROAD ACCIDENT CASES – ACTIONS FOR NEGLIGENCE – APPORTIONMENT OF DAMAGES – GENERALLY – where motor vehicle accident – whether driver negligent in operation and control of vehicle – whether passenger contributorily negligent - assessment of damages pursuant to the Civil Liability Act 2003 (Qld) Civil Liability Act2003 (Qld) s 47, s 48, s49, sch 2 Motor Accident Insurance Act 1994 (Qld) s 45(1)
COUNSEL:	SC Williams QC with G Cross for the plaintiff. T Matthews for the defendant. L Barnes for the plaintiff. DA Reid for the defendants.
SOLICITORS:	Colin Patino & Company Lawyers for the plaintiff. Quinlan Miller & Treston for the second defendant. John-Paul Mould Solicitors for the plaintiff. Herbert Geer & Rundle Lawyers for the defendants.