Johns v Cosgrove

[1997] QSC 229

IN THE SUPREME COURT

OF QUEENSLAND

No. 599 of 1993
[Johns v Cosgrove & Ors]

BETWEEN:
  DALLAS MIDGLEY JOHNS
  Plaintiff
AND:
  JENNIFER MARGARET COSGROVE
  Defendant
AND:
  CHEVRON QUEENSLAND LTD
  (In Liquidation)  Second Defendant
AND:
  RODNEY SIDNEY MACHIN
  Third Defendant
AND:
  DIANNE HELEN LEWIS
  Fourth Defendant
AND:
  THEODORE HARVEY LEWIS
  Fifth Defendant
AND:
  PETER FINN
  Sixth Defendant

JUDGMENT  -  DERRINGTON J

Judgment delivered      12 December 1997

CATCHWORDS:     

Counsel:

Solicitors:        

Hearing dates:  
IN THE SUPREME COURT

OF QUEENSLAND
  No. 599 of 1993

[Johns v Cosgrove & Ors]

BETWEEN:
  DALLAS MIDGLEY JOHNS
  Plaintiff

AND:
  JENNIFER MARGARET COSGROVE
  Defendant
AND:
  CHEVRON QUEENSLAND LTD
  (In Liquidation)  Second Defendant
AND:
  RODNEY SIDNEY MACHIN
  Third Defendant
AND:
  DIANNE HELEN LEWIS
  Fourth Defendant
AND:
  THEODORE HARVEY LEWIS
  Fifth Defendant
AND:
  PETER FINN
  Sixth Defendant

JUDGMENT  -  DERRINGTON J

Judgment delivered 12 December 1997

The plaintiff was born on 3 June 1961 so that at the date of the accident on 24 April 1990 he was approaching 29 years of age and is now 36 years.  At about 10.30 p.m. on the date of the accident he was grossly intoxicated with a blood alcohol level that was measured shortly afterwards at .332.  He was standing at a bus-stop at Ferny Avenue, Surfers Paradise a little to the north of its intersection with Cavill Avenue and across the road from the rear of the then location of the Chevron Hotel.  It seems that he then moved rapidly onto the roadway and was struck by a vehicle driven by the First Defendant.

In that place, Ferny Avenue consists of four lanes, all north-bound, though only three of them were available to moving traffic, that on the left being a bus lane or a parking lane and somewhat narrower than the others.

The road was the north-bound section of the arterial road running through Surfers Paradise.  At that hour of the night it was relatively quiet but there was still a moderate volume of traffic.  At the time of the accident there was only one vehicle other than that of the First Defendant in the immediate area.

The plaintiff had been drinking at the Second Defendant’s Chevron Hotel in the Long Bar from late in the afternoon until closing time.  He had gone there to drink heavily and to become intoxicated in accordance with his usual habit and, again in accordance with his usual habit, on leaving the hotel he had found his way to traffic lights on Ferny Avenue and crossed safely at a pedestrian crossing there and moved to the bus-stop where he intended to catch a bus home.  His usual practice was known to at least some of the hotel’s staff.

The first defendant was driving her motor car northwards at a speed of about 50 to 55 kilometres per hour.  She saw the plaintiff swaying and holding onto the bus-stop sign-post with both hands, and she recognised that he was drunk.  She then averted…