Hung v Ross
[2012] QCAT 578
•15 November 2012
| CITATION: | Hung v Ross [2012] QCAT 578 |
| PARTIES: | Isabella Hung (Applicant) |
| v | |
| Michael John Ross (Respondent) |
| APPLICATION NUMBER: | MCDO1607-12 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 9 November 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | J Bertelsen, Adjudicator |
| DELIVERED ON: | 15 November 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The respondent Michael John Ross pay to the applicant the sum of $1,008.28. |
| CATCHWORDS: | Motor vehicle accident – changing lanes – circumstances of incident – direction of vehicles – quantum of damage sustained |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Isabella Hung |
| RESPONDENT: | Michael John Ross |
REASONS FOR DECISION
The applicant seeks from the respondent the cost of repairs to her Mirage motor vehicle damaged as a result of a collision with a prime mover and trailer driven by the respondent.
Background and evidence
On 30 March 2012 at approximately 10:15am the applicant’s Mirage motor vehicle registration number 954RVW driven by the applicant and a Ford Louisville prime mover registered number 886RHF with loaded trailer driven by the respondent collided.
Both vehicles were heading south on the Brisbane Gateway Motorway approaching the Miles Platting Road exit. The applicant asserted she was travelling in the centre lane with the respondent’s vehicle travelling in the lane to her right; that the respondent began to merge left into the centre lane colliding with the back left of the applicant’s vehicle (which was identified as the rear driver’s side of the Mirage); that the impact caused the applicant to swerve into the left lane of the 3 lane motorway; that the applicant braked heavily. The applicant asserted she was proceeding straight ahead in the centre lane and had no reason to change lanes. She stated she was concentrating on driving, that is to say she was not using a mobile phone as alleged by some third party unknown unnamed person.
The respondent asserted that he was in the extreme right hand lane; that he checked his rear vision mirrors with the intention of changing to the middle lane as there was heavy commercial traffic wishing to overtake him; that he noticed 3 vehicles in the far left lane, one of which was a “small red car” (the Mirage); that the lane was clear; that he indicated, waited a short period of time and then commenced, as the lane was still clear, to merge across into the middle lane. After a call on his radio he stated he looked into his mirrors and noticed that the red car had locked its brakes up and was careering towards the left hand carriage way. The respondent asserted the point of impact with the prime mover was its front near side wheel.
Independent witness Linda Jean Harry stated in her declaration made 12 April 2012 that she was driving south on the Gateway motorway; that it was a 3 lane carriage way; that the applicant’s vehicle was proceeding in the centre lane; that she was proceeding in the left lane preparing to exit at Miles Platting Road; that she observed the “truck” to change lanes; that the “back left wheels of the truck connected with the right side of Ms Hung’s vehicle being driven in the middle lane”; that the red vehicle then went into a spin and entered the lane she was in. She observed the red vehicle to brake severely; that the red vehicle ended up stationary in the exit lane.
The witness' observations support the account given by the applicant namely that the applicant was proceeding in the middle (or centre) lane; that the respondent’s vehicle crossed into the middle lane in which the applicant’s vehicle was travelling; that the truck’s wheels collided with the rear driver’s side of the applicant’s vehicle (although there is a discrepancy as to exactly which wheel or wheels); that the applicant’s vehicle was required to break heavily or severely.
From the accepted accounts the Tribunal can conclude that the respondent’s vehicle moved into the centre lane, irrespective of whether it indicated to do so or not, in circumstances where the respondent ought to have waited until it was safe to change lanes.
The respondent’s account would have required the applicant’s vehicle to move from the left lane to the centre lane. That is inconsistent with the account given by both the applicant and witness.
The Tribunal is satisfied that the applicant’s vehicle was at all times in the centre lane proceeding straight ahead and that the respondent’s vehicle crossed over into the centre or middle lane when it was not possible to do so without colliding with the applicant’s vehicle.
Quantum
The applicant relied on the Brady Body Works quote dated 5 April 2012 and the invoice from Beaurepaires dated 5 May 2012.
The respondent admitted there was some damage to the applicant’s vehicle. He asserted the repair quote, in particular, was “excessive”, citing his extensive experience as manager of a number of franchise motor dealerships where he was required to value motor vehicles and prepare traded motor vehicles for resale.
He stated the damage was to ABS plastic panel work; that this plastic has a memory and that it only required a heat gun or even a hairdryer to “pop” it back into shape; that his repair estimate was initially $250.00 but later suggested at $300.00.
3 photos on a laptop were produced by the applicant. These were shown and commented on by the respondent. Hard copies have since been received into the record. These photos were on the applicant’s evidence taken immediately after the incident.
The respondent suggested that the photos were taken after some of tyre black had been removed; that initially there was more black on the paintwork with none of the undercoat showing through. That the paintwork has subsequently been rubbed back such that the undercoat paintwork showed through thereby making the damage appear more serious than it really was.
The respondent however also stated in evidence that there was “scoring and red” on the left hand side front wheel of the prime mover. That is indicative of paintwork being rubbed off the applicant’s vehicle.
The respondent asserted it was not necessary to remove and replace mudflaps, inner boot trims, offside rear quarter panel hardware, fuel filter flap and offside sill skirt. The 3 photos indicate damage to the rear bumper and offsite quarter panel. The removal and replacement can well be accounted for by the necessity to repair and align the rear bumper and offside quarter panel as well as having to refinish both those 2 items which were obviously in a damaged state.
The fact that the rear bumper is attached with 4 bolts and 6 clips (if indeed that is the case) simply goes to the style of vehicle being dealt with and in no way calls into question the legitimacy of the quote.
The description of proposed repairs is entirely consistent with the damage sustained particularly as indicated in the 3 photos. The respondent is not a motor vehicle repairer and there is nothing in his material to suggest he ever carried on business as such. At best he was involved in valuing motor vehicles and preparing traded motor vehicles for resale. The quote was given 5 days after the incident. There was no suggestion of additional damage in the interim. The quote from Brady Body Works is a third party independent quote by an entity carrying on business as a motor vehicle repairer. The respondent has admitted some damage to the applicant’s vehicle.
In these circumstances the Tribunal finds that the quantum of the quote is reasonable.
The applicant also claimed for the replacement of 1 tyre due to a flat spot caused by excessive braking. The evidence of heavy or severe braking is more than adequate. Given the nature of the incident it is not surprising that at least 1 tyre was subsequently subject to a flat spot. The applicant produced evidence of the purchase of 4 tyres for the Mirage vehicle only 3 months before the incident. Such tyres could be considered near new. Given that a new tyre has replaced a near new tyre purchased at a lesser cost the applicant is constrained to the sum of $79.00 ($316 / 4) not the increased cost of a new tyre 3 months later.
Conclusions
The Tribunal concludes the respondent is responsible for the damage sustained to the applicant’s vehicle in the sum of $928.00 and $79.00 a total of $1,008.28.
Order
The respondent Michael John Ross pay to the applicant the sum of $1,008.28.
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