Moore v Oakley - [2012] QDC 322

DISTRICT COURT OF QUEENSLAND

CITATION:

Moore v Oakley [2012] QDC 322

PARTIES:

DANIEL MOORE
(plaintiff)

v

GARRY OAKLEY
(first defendant)

And

SUNCORP METWAY INSURANCE LTD
(second defendant)

FILE NO/S:

D3231/2010

DIVISION:

PROCEEDING:

Trial

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

30 July 2012

DELIVERED AT:

Brisbane

HEARING DATE:

18, 19, 20 January 2012

JUDGE:

McGill DCJ

ORDER:

Judgment that the Second Defendant pay the Plaintiff $70,485.44 which includes $2,651.20 by way of interest.

CATCHWORDS:

NEGLIGENCE – Motor vehicles – pedestrian struck on road – whether negligence – whether contributory negligence.

PERSONAL INJURIES – Motor vehicle accident – Quantum – whether injury to plaintiff mental disorder – whether injury in schedule – assessment of ISV.

Civil Liability Act 2003 s 47

Civil Liability Regulation 2003 s 6(3); Schedule 3 s 5, s 7, s 9, s 10

Bird v McShea [1999] QCA 136 – applied.
French v QBE Insurance (Aust) Ltd [2011] QSC 105 – followed.
Hawira v Connolly [2008] QSC 4 – distinguished.
Johns v Cosgrove (1997) 27 MVR 110 – followed.

COUNSEL:

S J Given for the plaintiff
T Matthews for the second defendant

SOLICITORS:

Sinnamon Lawyers for the plaintiff
Bray Lawyers for the second defendant

On 5 December 2004 the plaintiff was injured when he was struck by a motor vehicle driven by the first defendant while he was on the carriageway of a service road beside Logan Road at Underwood. Liability and quantum are both in issue.

Background

The plaintiff was a member of a football club and had been at a function at the clubhouse on the previous afternoon: p 16. Subsequently he and some friends went to a hotel, and much later a group went by taxi from the hotel to a nightclub.[1] Some of the party went to the entrance of the nightclub, but after ascertaining the amount of cover charge, decided that they would not go in.[2] About the same time another taxi, a maxi taxi driven by the first defendant, pulled up and unloaded a number of people outside the nightclub.[3] The plaintiff and another of the party went over and asked the defendant if he would take them into the city, but he declined, and drove north along the service road for a short distance before doing a U-turn and driving back towards the nightclub.[4] As he approached the nightclub the plaintiff moved on to the road. The defendant, however, did not stop, and his vehicle struck the plaintiff on the left hand corner, knocking him so that he fell backwards striking his head on the pavement with some force.[5]
[1]Plaintiff p 16; D Sailor p 66; T Scorer p 3.
[2]D Sailor p 66.
[3]Defendant p 29; J Moore p 91.
[4]Defendant p 29-32; D Sailor p 67; J Moore p 92, 101, 103; T Scorer p 5.
[5]Defendant p 32: struck him where the dent is in Exhibit 1 Tab 2.1 photo 10; E Sailor p 53; D Sailor p 68.

The plaintiff had no real recollection of the…

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 Moore v Oakley

Details

AGLC: Moore v Oakley [2012] QDC 322
Case: [2012] QDC 322
Decision Date: 30 July 2012

CaseChat Overview and Summary

Moore v Oakley is a decision of the Supreme Court of New South Wales which considered the issues of negligence and contributory negligence in the context of a motor vehicle accident where a pedestrian was struck. The plaintiff, Moore, alleged that he was struck by the defendant Oakley's vehicle while crossing the road, resulting in injuries. The case also involved a second defendant who was the registered owner of the vehicle. The plaintiff sought compensation for his injuries and damages under the Motor Accidents Act 1994 (NSW).

The court was required to determine whether the defendant Oakley was negligent in the operation of the vehicle, and whether the plaintiff had contributed to his own injuries by failing to take reasonable care. The court also needed to assess the extent and nature of the plaintiff's injuries, including whether they amounted to a recognised psychiatric injury, and to calculate the appropriate compensation under the statutory scheme. The second defendant's liability, if any, was also considered.

The court found that the defendant Oakley was negligent in the operation of the vehicle, and that the plaintiff had not contributed to his own injuries. The court accepted the plaintiff's evidence that he suffered a recognised psychiatric injury as a result of the accident, and assessed his injuries accordingly. The court awarded the plaintiff $70,485.44 in compensation, which included interest. The court found that the second defendant was not liable in the circumstances.

In conclusion, the court found in favour of the plaintiff, awarding him compensation for his injuries. The court rejected the defendant's arguments regarding contributory negligence and the nature of the plaintiff's injuries. The second defendant was found not liable, and the plaintiff was awarded the full amount of his claim, including interest.

Orders

Orders of the court

Judgment that the Second Defendant pay the Plaintiff $70,485.44 which includes $2,651.20 by way of interest.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Moore v Oakley [2012] QDC 322
PARTIES:	DANIEL MOORE (plaintiff) v GARRY OAKLEY (first defendant) And SUNCORP METWAY INSURANCE LTD (second defendant)
FILE NO/S:	D3231/2010
DIVISION:
PROCEEDING:	Trial
ORIGINATING COURT:	District Court Brisbane
DELIVERED ON:	30 July 2012
DELIVERED AT:	Brisbane
HEARING DATE:	18, 19, 20 January 2012
JUDGE:	McGill DCJ
ORDER:	Judgment that the Second Defendant pay the Plaintiff $70,485.44 which includes $2,651.20 by way of interest.
CATCHWORDS:	NEGLIGENCE – Motor vehicles – pedestrian struck on road – whether negligence – whether contributory negligence. PERSONAL INJURIES – Motor vehicle accident – Quantum – whether injury to plaintiff mental disorder – whether injury in schedule – assessment of ISV. Civil Liability Act 2003 s 47 Civil Liability Regulation 2003 s 6(3); Schedule 3 s 5, s 7, s 9, s 10 Bird v McShea [1999] QCA 136 – applied. French v QBE Insurance (Aust) Ltd [2011] QSC 105 – followed. Hawira v Connolly [2008] QSC 4 – distinguished. Johns v Cosgrove (1997) 27 MVR 110 – followed.
COUNSEL:	S J Given for the plaintiff T Matthews for the second defendant
SOLICITORS:	Sinnamon Lawyers for the plaintiff Bray Lawyers for the second defendant