Kickbusch v Lehane

Case [2022] QDC 16

DISTRICT COURT OF QUEENSLAND

CITATION:

Kickbusch v Lehane & Anor [2022] QDC 16

PARTIES:

STEVEN JAMES KICKBUSCH

(plaintiff)

v

JASON THOMAS LEHANE

(first defendant)

and
ALLIANZ AUSTRALIA INSURANCE LIMITED
(ACN 15 000 122 850)

(second defendant)

FILE NO:

4599 of 2019

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

14 February 2022

DELIVERED AT:

Brisbane

HEARING DATE:

18 – 20 August 2021. Written submissions received 24 August 2021, 16 September 2021 and 20 September 2021.

JUDGE:

Byrne QC DCJ

ORDERS:

1.    Judgment for the plaintiff in the sum of $173,085.25.

2.    Unless the parties can agree on costs, submissions on costs from both parties, limited to no more than five pages, must be exchanged and filed no later than 4.00pm on 24 February 2022.

3.    Any reply to those submissions, limited to no more than three pages, must be exchanged and filed no later than 4.00pm on 1 March 2022.

4.    Liberty to apply.

CATCHWORDS:

EVIDENCE – ADMISSIBILITY – OPINION EVIDENCE – EXPERT OPINION – BASIS OF OPINION – where the plaintiff tendered a report of an engineer as the report of an expert – where the defendants objected – where a number of the objections were conceded – whether the expert’s contested opinions were as an expert or factual conclusions better made by the Court

TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – LIABILITY OF DRIVERS OF VEHICLES – INTERSECTIONS AND JUNCTIONS – where the first defendant was driving a truck towing a trailer – where the first defendant’s vehicle collided with a motor cycle being ridden by the plaintiff – where the collision happened as the plaintiff attempted to overtake the truck within a single marked lane of traffic – whether the defendant was responsible for the plaintiff’s injury – whether the plaintiff was contributorily responsible

TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – QUANTUM OF DAMAGES – where the plaintiff suffered personal injuries as a result if a collision between a truck driven by the first defendant and a motor cycle driven by the plaintiff – where each party contributed to the causation of those injuries.

LEGISLATION:

Civil Liability Act 2003 (Qld)

Civil Liability Act 2002 (NSW)

Civil Liability Regulation 2014 (Qld)

Law Reform Act 1995

Transport Operations (Road Use Management – Road Rules) Regulation 2009

CASES:

Allwood v Wilson & Anor [2011] QSC 180

Braund v Henning (1988) 79 ALR 417

Brown v Daniels & Anor [2018] QSC 209

Cullen v Trappell (1980) 146 CLR 1

Freeleagus v Nominal Defendant [2007] QCA 116

Green v Hanson Construction Materials Pty Ltd [2007] QCA 260

Heywood v Commercial Electrical Pty Ltd [2013] QCA 270

Kriz v King & Anor [2006] QCA 351

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638

Medlin v State Government Insurance Commission (1995) 182 CLR 1

Nucifora & Another v AAI Limited [2013] QSC 338

Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492

Rains v Frost Enterprises Pty Limited [1975] Qd. R. 287

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Details
AGLC
Kickbusch v Lehane [2022] QDC 16
Case
[2022] QDC 16
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Queensland, Kickbusch, the plaintiff, brought an action against Lehane, the first defendant, and another party, seeking damages for injuries sustained in a road accident. The plaintiff was riding a motorcycle when it collided with the first defendant's truck, which was towing a trailer. The defendants denied liability for the accident but argued that the plaintiff's actions contributed to the collision. The case involved the admissibility of expert evidence and the quantum of damages.

The court had to determine whether the expert's opinion evidence was admissible. The plaintiff tendered a report from Dr Raymond Hope, a consulting mechanical engineer, which the defendants objected to on the basis that it contained speculative opinions that did not require special expertise. The court considered the law on the admissibility of expert evidence and concluded that the opinions in question were not based on any science or expertise and that the court was in as good a position as the expert to draw conclusions about the vehicles' movements. The court allowed the report into evidence with some redactions.

The court found that the defendants were liable for the plaintiff's injuries, but the plaintiff was also contributorily negligent. The court awarded damages of $173,085.25 to the plaintiff. The parties were required to submit and exchange written submissions on costs, with a deadline of 24 February 2022 for the initial submissions and 1 March 2022 for any replies. The court reserved the right to grant further orders as necessary.

Orders

Orders of the court

1. Judgment for the plaintiff in the sum of $173,085.25.

2. Unless the parties can agree on costs, submissions on costs from both parties, limited to no more than five pages, must be exchanged and filed no later than 4.00pm on 24 February 2022.

3. Any reply to those submissions, limited to no more than three pages, must be exchanged and filed no later than 4.00pm on 1 March 2022.

4. Liberty to apply.

Background

Background to the litigation

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Evidence

Evidence Before The Court

On liability, the defendants primarily deny liability, but alternatively submit that the plaintiff’s driving contributed to the cause of the collision to such an extent that an apportionment of 75 % contributory negligence should be found. An objection to evidence On the first morning of trial, the defendants objected to portions of an expert report intended to be relied on by the plaintiff. The report was authored by Dr Raymond Hope, a consulting mechanical engineer. Some objections were the subject of agreement between the parties. The remaining objection was to a part of the report only, which succeeded, and the balance of the report became exhibit 23. There was a consequential objection to parts of a file note of a conversation with Dr Hope, which ultimately became exhibit 24. I gave rulings in the course of the trial, each with some particularly brief reasons.[2] These are now more detailed, albeit still brief, reasons for that ruling.[2]Ts 1-85, ll 5-26; 2-34, l 42 to 2-35, l 6. The objections were refined, in the course of submissions, to an objection to the opinion evidence as to the path that each of the truck (and hence the trailer) and the motorcycle took from Coronation Drive into Park Road.[3] Those opinions were, in essence, said to be speculative and also not falling within the field of expertise of Dr Hope. Broadly speaking, the impugned passages were sought to be justified as being scientific and mathematical extrapolations from non-contentious facts that went to a central issue. [3]Ts 1-32, ll 21-46; 1-25, ll 24-31; 1-37, ll 14-32; 1-84, ll 43-47. There was no dispute as to the state of the law on the topic of admissibility of expert evidence, and I was referred to Sanrus Pty Ltd & Ors v Monto Coal 2 Pty Ltd & Ors (No. 5),[4] R v Faulkner[5] and Brown v Daniels & Anor.[6] I had regard to those authorities, and the authorities mentioned in them in making my rulings. [4][2019] QSC 210, especially at [45]-[58].[5][1987] 2 Qd. R. 263[6] [2018] QSC 209 In the circumstances of this matter, there is no need to undertake a detailed consideration of the law on the topic. In essence, Dr Hope in his report has taken the accepted starting positions of each vehicle on Coronation Drive and the accepted resting position of the truck, accepted that the point of collision was at or near the resting position of the truck and opined that each had taken a certain course. To borrow, and adapt, the conclusion of Davis J in Brown v Daniels & Anor: [7]“These opinions are, with respect, not truly based on any science. They are simply conclusions which are drawn from physical evidence. No science or expertise is identified as the basis upon which the conclusions are drawn. The Court is in as good a position as Dr [Hope] to consider the evidence and draw conclusions as to the movement of the two vehicles … [prior to] the accident.”[7]supra at [43]. True it is that Dr Hope had regard to the specifications of the truck in question, but there was nothing about that which required the application of special knowledge, expertise or experience.[8] The court was in as good a position to determine these matters as anyone else.[8]cf Weal v Bottom (1966) 40 ALJR 436.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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