Nash v Damorange Pty Ltd - [2017] QDC 275

DISTRICT COURT OF QUEENSLAND

CITATION:

Nash v Damorange Pty Ltd & Anor [2017] QDC 275

PARTIES:

ALAN PETER NASH

(appellant)

v

DAMORANGE PTY LTD

(first respondent)

AND

DANIEL JAMES MONTAGUE

(second respondent)

FILE NO/S:

BD156/17

DIVISION:

Civil

PROCEEDING:

Appeal pursuant to s 45 of the Magistrates Court Act

ORIGINATING COURT:

Magistrates Court

DELIVERED ON:

15 November 2017

DELIVERED AT:

Cairns

HEARING DATE:

6 October 2017

JUDGE:

Clare SC DCJ

ORDER:

The appeal is allowed. 1.

The judgment is quashed and the matter is remitted to the Magistrates Court for rehearing.2.

I will hear the parties as to costs. 3.

CATCHWORDS:

CIVIL APPEAL – ADMISSIBILITY OF EXPERT EVIDENCE – CRASH SCENE ANALYSIS – time, speed, distance calculations – qualifications of the expert – recognition of the branch of knowledge – opinion evidence where eyewitness testimony

Bugg v Day (1949) 79 CLR 442

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588

Derrick v Cheung [2000] HCA 48

Fox v Percy [2003] 214 CLR 118

HG v the Queen (1999) 197 CLR 414

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 729

Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844

PQ v Australian Red Cross Society [1991] 1 VR 19

R v Carrol [1985] 99 A Crim R 410

R v Mackenzie [2016] QCA 277

R v Sheldon [2014] QCA 328

Read v Nominal Defendant [2007] QSC 297

Sibley v Kais (1967) 118 CLR 424

COUNSEL:

Mr S Hogg for the appellant

Ms S McNeil for the respondents

SOLICITORS:

Hicksons Lawyers for the appellant

Shaw McDonald Lawyers for the respondents

On 18 July 2012, at the intersection of an off-ramp and service road for Ipswich Road, a truck ran headlong into a prime mover travelling across its lane. Fortunately, no one was hurt, but the vehicles suffered substantial damage. The owner of the prime mover, together with its driver, Daniel Montague, brought an action for negligence against Alan Nash, the driver of the truck. Mr Nash counterclaimed damages for negligence. The learned Magistrate gave judgment for the plaintiff.

The ground of appeal concerns the decision of His Honour to exclude the evidence of crash scene analysis. The evidence was wrongly excluded. Mr Nash was deprived of the opportunity to lead relevant evidence in his defence. Regrettably, the matter must now be remitted to the Magistrates Court for rehearing.

The area of dispute was narrow. The location and path of travel was uncontroversial. The prime mover was towing 2 trailers (referred to as the B Double). It had travelled north east along the Ipswich Service Road towards the intersection with Ashover Road at Rocklea. The Ipswich Service Road was a divided road for two-way travel. A Mitsubishi rigid truck with a crane (the truck) was on the opposite side of the intersection travelling toward the south west bound lane of the Ipswich Service Road. It had taken the Granard Road off-ramp onto the slip road.

The B Double’s lane ended at the intersection at a stop sign and…

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 Nash v Damorange Pty Ltd

Details

AGLC: Nash v Damorange Pty Ltd [2017] QDC 275
Case: [2017] QDC 275
Decision Date: 15 November 2017

CaseChat Overview and Summary

The case of Nash v Damorange Pty Ltd involved an appeal by the defendant against an earlier decision made by the Magistrates Court. The primary dispute was regarding the admissibility of expert evidence presented by the plaintiff in relation to a vehicle crash. The expert evidence pertained to the analysis of the crash scene, including calculations of time, speed, and distance. The qualifications of the expert witness and the recognition of the particular branch of knowledge were also matters in contention, particularly in light of the existence of eyewitness testimony.

The legal issues before the court centred on whether the expert evidence was admissible, given the presence of eyewitness accounts. The court had to determine if the expert's opinion was necessary and whether the branch of knowledge the expert represented was sufficiently recognised in the field. Additionally, the court examined the qualifications of the expert and whether these were adequate to support the admissibility of the evidence. The court also had to consider the potential redundancy of the expert evidence in light of the eyewitness testimony.

The court, in reaching its decision, found that the expert evidence was not admissible due to the presence of eyewitness testimony which could equally provide the necessary information regarding the crash. The court held that the expert's qualifications, while relevant, did not sufficiently elevate the evidence above that which could be provided by the eyewitnesses. The court further reasoned that the branch of knowledge did not sufficiently outweigh the eyewitness accounts. As a result, the appeal was allowed, and the judgment was quashed, with the matter being remitted to the Magistrates Court for rehearing. The court also noted that the parties would be heard regarding costs.

Orders

Orders of the court

The appeal is allowed. 1.

The judgment is quashed and the matter is remitted to the Magistrates Court for rehearing.2.

I will hear the parties as to costs. 3.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Nash v Damorange Pty Ltd & Anor [2017] QDC 275
PARTIES:	ALAN PETER NASH (appellant) v DAMORANGE PTY LTD (first respondent) AND DANIEL JAMES MONTAGUE (second respondent)
FILE NO/S:	BD156/17
DIVISION:	Civil
PROCEEDING:	Appeal pursuant to s 45 of the Magistrates Court Act
ORIGINATING COURT:	Magistrates Court
DELIVERED ON:	15 November 2017
DELIVERED AT:	Cairns
HEARING DATE:	6 October 2017
JUDGE:	Clare SC DCJ
ORDER:	The appeal is allowed. 1. The judgment is quashed and the matter is remitted to the Magistrates Court for rehearing.2. I will hear the parties as to costs. 3.
CATCHWORDS:	CIVIL APPEAL – ADMISSIBILITY OF EXPERT EVIDENCE – CRASH SCENE ANALYSIS – time, speed, distance calculations – qualifications of the expert – recognition of the branch of knowledge – opinion evidence where eyewitness testimony Bugg v Day (1949) 79 CLR 442 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 Derrick v Cheung [2000] HCA 48 Fox v Percy [2003] 214 CLR 118 HG v the Queen (1999) 197 CLR 414 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 729 Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844 PQ v Australian Red Cross Society [1991] 1 VR 19 R v Carrol [1985] 99 A Crim R 410 R v Mackenzie [2016] QCA 277 R v Sheldon [2014] QCA 328 Read v Nominal Defendant [2007] QSC 297 Sibley v Kais (1967) 118 CLR 424
COUNSEL:	Mr S Hogg for the appellant Ms S McNeil for the respondents
SOLICITORS:	Hicksons Lawyers for the appellant Shaw McDonald Lawyers for the respondents