Helsham v Rye - [2000] QSC 277

SUPREME COURT OF QUEENSLAND

CITATION: Helsham v Rye and Cook and FAI General Insurance Company Limited [2000] QSC 277

PARTIES: WAYNE RUSSELL HELSHAM
(Plaintiff)
v
ERIC WILLIAM RYE
(First Defendant)
AND
FAI GENERAL INSURANCE COMPANY LIMITED ACN 000 327 855
(Defendant by Election)
AND
GLEN ALLEN COOK
(Second Defendant)

FILE NO: S123 of 1995

DIVISION: Trial Division

DELIVERED ON: 17 July 2000

DELIVERED AT: Mackay

HEARING DATES: 10, 11 and 12 July 2000

JUDGE: Dutney J

ORDER:Judgment for the plaintiff against the first defendant with costs to be assessed.
Judgment for the second defendant against the plaintiff with the first defendant to pay the second defendant’s costs of the action to be assessed.
Protection order made directing the net proceeds of the judgment be paid to the Public Trustee.

CATCHWORDS: NEGLIGENCE - MOTOR VEHICLE ACCIDENT - PERSONAL INJURIES – LIABILITY – ASSESSENT OF DAMAGES – CONTRIBUTORY NEGLIGENCE –
Claim for damages for personal injuries sustained in a motor vehicle accident – whether first defendant partly on highway - whether second defendant acted reasonably in

slowing to a halt on highway – whether plaintiff negligent in attempting to overtake on left of second defendant

Rains v Frost Enterprises Pty Ltd [1975] Qd R 287, distinguished
Braund v Henning (1986) 62 ALJR 433, distinguished and considered
Segal v Hanner (1988) 7 MVR 56, distinguished
March v E. & M.H. Stamare Pty Ltd (1990-1991) 171 CLR 506, considered
Hedge v Trenerry (CA(Qld), App 4911 of 1996, 7 November 1997) at p11, considered
Hyne v Tomlinson (CA(Qld), App 8283 of 1997, 22 May 1998) at p9, considered
Delaney v Shepherd [2000] QCA 107 at para 2, considered

COUNSEL:T Morgan for the plaintiff
A Wilson SC and M Kent for the first defendant and defendant by election
P Ambrose for the second defendant

SOLICITORS: Barron & Allen for the plaintiff
Minter Ellison for the first defendant and defendant by election
Quinlan, Miller & Treston for the second defendant

DUTNEY, J: The plaintiff was injured on the early afternoon of 26 April 1994 when the motor bike he was riding collided with the front of a VW Kombi van driven by the first defendant, Eric William Rye, on the Peak Downs Highway about 4km on the Mackay side of Walkerston.

Liability

The plaintiff has post traumatic amnesia with the result that he has no memory of the event or of events from some few minutes preceding the accident until some time later. Nonetheless, from evidence of a witness and other persons involved it is possible to build up a fairly clear picture of the relevant events.

The first and second defendants gave mutually exclusive versions of the accident.

The first defendant, Mr Rye, said that on 26 April 1994 he had visited his son’s residence at 995 Peak Downs Highway during the morning to help pump out the swimming pool. The accident occurred as he was leaving the property. He said

he had come out of the side drive of the house, turned…

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 Helsham v Rye

Details

AGLC: Helsham v Rye [2000] QSC 277
Case: [2000] QSC 277
Decision Date: 17/07/2000

CaseChat Overview and Summary

Wayne Russell Helsham sued Eric William Rye, the driver of a Kombi van, and Glen Allen Cook, the driver of a Nissan Patrol, for damages following a motor vehicle accident on the Peak Downs Highway. The accident occurred when Helsham's motorcycle collided with the Kombi van driven by Rye, causing him severe injuries. The legal issues before the court included determining the liability of each defendant, assessing the extent of Helsham's contributory negligence, and quantifying the damages awarded. The court found Rye grossly negligent for driving onto the highway in a dangerous manner, causing Cook to brake suddenly. Helsham's contributory negligence was assessed at 10%, as he could not see the Kombi van due to it being obscured by Cook's vehicle. The court awarded Helsham damages for pain and suffering, loss of amenities, special damages, past and future economic loss, lost superannuation, and care costs. A protection order was made to direct the net proceeds of the judgment be paid to the Public Trustee due to Helsham's inability to manage a substantial capital sum. The court ordered Rye to pay Helsham's costs and Rye to pay Cook's costs.

Orders