McLean v Nominal Defendant

[2012] QDC 73

DISTRICT COURT OF QUEENSLAND

CITATION:

McLean v Nominal Defendant [2012] QDC 73

PARTIES:

GARY JOHN MCLEAN
(Plaintiff)

AND

NOMINAL DEFENDANT
(Defendant)

FILE NO/S:

D487/11

DIVISION:

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

2 May 2012

DELIVERED AT:

Brisbane

HEARING DATE:

24, 25 November 2011

JUDGE:

McGill DCJ

ORDER:

Judgment that the defendant pay the plaintiff $124,934.80.

CATCHWORDS:

NEGLIGENCE – Motor Vehicle – pedestrian accident – whether accident occurred as alleged – whether negligence – whether contributory negligence when plaintiff intoxicated.

Civil Liability Act 2003 s 47.

Ballesteros v Chidlow [2006] QCA 323 – cited.
French v QBE Insurance (Aust) Ltd [2011] QSC 105 – followed.
Hawira v Connolly [2008] QSC 4 – distinguished.
Van Muyen v Nominal Defendant [2002] QSC 344 – cited.

COUNSEL:

R.J. Lynch for the plaintiff

K.S. Howe for the defendant

SOLICITORS:

McInnes Wilson Lawyers for the plaintiff

Broadley Rees Solicitors for the defendant

1. Shortly before 7 pm on 8 March 2009 an ambulance arrived at an address at Deception Bay, the home of the plaintiff’s sister.[1]  They found the plaintiff lying on the lawn inside the front fence, apparently in some distress.  He also appeared to be adversely affected by alcohol:  p 9.  He was taken to the Nambour Hospital, where he was found to be suffering from fractures in both feet:  Exhibit 4.  The plaintiff claims that he suffered those injuries through being struck, as he was starting to cross a road beside a roundabout in Deception Bay, by a motor vehicle which did not stop after the accident and which he is unable to identify.  Liability and quantum are both in issue.

   [1]Worth p 8.

1. The plaintiff’s version was that the previous night he had been drinking with a friend of his who lived about a kilometre away from his home at Deception Bay:  p 8.  He spent the night at the friend’s house, and the next morning, after some additional drinking, they walked back to his house, collected a lawn mower and brought it to the friend’s house, where they proceeded to mow the lawn:  p 9.  They then walked to the local tavern about half a kilometre away where they drank together until the friend left, and the plaintiff decided to go to his sister’s place; he did not want to go home because he had had trouble with his nephew:  p 10.

1. The plaintiff left the tavern and walked along the west side of Bay Avenue[2] to the intersection with Maine Terrace, where there is a roundabout:  p 11.  He followed the path to the crossing point on Maine Terrace, which is just to the west of the roundabout:  p 12, p 25.  He said he looked before crossing, but did not see any cars coming:  p 13.  He then started to walk across, when a car came quickly around the corner from Bay Avenue.  He tried to jump back but it hit him.  He said the car hit his right foot, he heard glass breaking, which he assumes…