Nuhovic v. Sharps

[2005] QSC 252

SUPREME COURT OF QUEENSLAND

[2005] QSC 252

CIVIL JURISDICTION

ATKINSON J

No BS 8507 of 2003

NEDZAD NUHOVIC AS LITIGATION GUARDIAN FOR DZENAN NUHOVIC	Plaintiff
and
GREGORY SHARPS	First Defendant

and

SUNCORP METWAY INSURANCE LIMITED     Second Defendant

BRISBANE

..DATE 26/08/2005

JUDGMENT

HER HONOUR:  This was the hearing of the question of liability

in a claim brought by Nedzad Nuhovic as litigation guardian

for Dzenan Nuhovic against Gregory Sharps and Suncorp Metway

Insurance Limited.  The trial was split into a hearing on

liability and quantum because the main question in contention

was that of liability.

There is no doubt that the accident which led to this

litigation has had terrible consequences for the plaintiff who

was dreadfully injured in the motor vehicle accident in

question.  He has been left with substantial serious long-term

injuries and it should be recognised that nothing about the

liability for the accident makes any difference at all to the

tragedy for him, his friends and his family.

But what concerns me in this action is whether or not the

first defendant was in breach of any duty of care with regard

to the incident and whether any failure to exercise reasonable

care by him materially contributed to the outcome.  There is

no doubt, of course, that the first defendant as a road user

had a duty of care to other road users.

I should first set out the facts as I find them to be.  The

plaintiff was the driver of a Mazda MX6 motor vehicle,

registration number 248-FJW.  The first defendant was the

owner and driver of a Mack truck R600, registration number

541-EYM.  The second defendant was the insurer of, pursuant to

a CTP insurance policy, the first defendant's motor vehicle.

The accident had occurred about 11 a.m. on the 16th of

October 2000.  A number of photographs were taken at the scene

and they show a fine clear day with good visibility.

The accident that occurred was the collision between the

first defendant's Mack truck and the plaintiff's Mazda at the

corner of Bradman Street and Dulacca Street, Acacia Ridge.

In making the findings of fact that I do, I have had regard to

the evidence before me in this trial.  The plaintiff because

of his terrible injuries is unable to give evidence.  Also

unavailable was Sergeant Debra Hill, who investigated the

accident.  However, I did have the advantage of a report

prepared by Sergeant Hill when she investigated the accident.

In addition to her written report, I also had the advantage of

the police Traffic Incident Report and notes taken at the time

of the accident.

The plaintiff called as a witness Sergeant Ruler, a very

experienced police sergeant in the Traffic Accident

Investigation Squad.  He took the photographs that are

referred to earlier and was able to interpret them in his

evidence before the Court.

In addition, the plaintiff led evidence from Dr Ludcke, who

investigated the evidence and through computer modelling was

able to reconstruct the various scenarios which led to the

accident occurring.

There was objection to that report by the defendant but I must

say I found it extremely useful.  It is true there are a

number of assumptions found in the mathematical modelling, but

once one has an awareness of what those assumptions are, the

computer modelling is extremely useful for determining what is

most likely to have occurred.

However, I should say that evidence played no role in my

decision, apart from confirming the conclusions that I would

otherwise have reached on the rest of the evidence.  There may

well be cases where such evidence goes further than that, but

that is the role that it played in that case.  That at least

has given me more confidence in the conclusions that I would

in any event have reached.

In addition, there was evidence called for the defendant from

Mr Cumerford, who was an independent witness, as to what

occurred.  He was driving in a truck about 100 metres behind

the first defendant's truck and so was in a good position to

observe what happened.  I also had the advantage of evidence

from Mr Sharps, the first defendant.

Both of those gentlemen struck me as entirely honest in

endeavouring to assist the Court to the best of their ability

to tell me precisely what happened.  Neither of them were

endeavouring to, in my view, make the situation better for

themselves and Mr Sharps, in particular, did not strike me as

a person who was trying to tailor his evidence to make himself

less liable and, of course, with the insurer as the second

defendant there is no financial reason for him to do so in

this case.

Mr Sharps and Mr Cumerford were people, as I have said, giving

honest evidence.  Where their evidence diverged from one

another, as it did in a couple of points, was because of

honest differences in recollection rather than because of any

intention not to be fully frank with the Court.

So, based on all the evidence I have heard and read, these are

the findings of fact that I make about how the accident

occurred.

The first defendant, Mr Sharps, had loaded his Mack truck with

the load of concrete blend not long before the incident

happened.  The truck was not laden to its full capacity but

with the load on board weighed about 21.5 tonnes.

He turned from Beaudesert Road on to Bradman Street in

Acacia Ridge at the lights.  Mr Cumerford was waiting at the

lights in Bradman Street and that was how Mr Cumerford came to

be following Mr Sharps in his truck.

Bradman Street is a major road in an industrial area.  It has

two northbound lanes and two southbound lanes and is a wide,

clear, straight road.  Mr Sharps was travelling northbound

along that road, which had a speed limit at that time of 60

kilometres an hour.  He was travelling within the speed limit

at a speed of somewhere between 55 and 60 kilometres an hour

in the right-hand lane of the northbound lanes.  When he was

about 80 metres from a T-junction he first noticed the

plaintiff's car.  The T-junction in question is the T-junction

of Dulacca Street on to Bradman Street.  Dulacca Street is a

much more minor road and, as one would expect, has a broken

line at the end of it where it intersects with Bradman Street

indicating that a car wishing to enter into Bradman Street has

to give way to the traffic on Bradman Street.  Even if that

were not the case, the ordinary default rule is that a car has

to give way to those vehicles on its right, but it was

perfectly clear in this case that a car coming from

Dulacca Street to Bradman Street would have to look out for

the traffic in Bradman Street.

As it is an industrial area, one would expect trucks of the

kind that the plaintiff was driving to be on Bradman Street

and, in fact, in the photographs taken by Sergeant Ruler after

the accident occurred, there are many trucks seen incidentally

in those photographs.  Opposite the T-junction is a major

Woolworths depot, which obviously attracts a lot of that kind

of traffic, and the evidence was, as I have said, that it was

an industrial area with a lot of traffic by trucks.

What Mr Sharps saw when he first noted the plaintiff's motor

vehicle was that the Mazda was travelling relatively slowly

towards the broken line.  The first defendant gave an account

to the police immediately after the accident happened and

signed a police statement.  He spoke subsequently to an

accident investigator, and he gave his evidence here, so there

were a number of occasions on which he gave an account of what

happened.

There are slight variations in that, particularly as to what

he might have thought about the plaintiff's intentions when he

first saw his motor vehicle, but I have concluded that the

most reliable of those accounts, which varied only slightly,

are those found in the police statement and that given in

evidence before me.

The reason why the police statement is particularly useful is

it was so soon after the events.  The reason why the evidence

before me was so useful was it was on oath and he was cross-

examined and I had a good opportunity to consider that

evidence and see Mr Sharps give that evidence.

From all of that evidence, I have no hesitation in concluding

that when Mr Sharps first noticed the plaintiff's car he had

no reason at all to think that it would not stop at the broken

line leading into the intersection.

Why is that?  First, it is consistent with his evidence and,

secondly, it is consistent with common sense.  The plaintiff's

actions in coming out into the intersection when there was a

truck driving on his right within the speed limit but at full

speed was so extraordinarily dangerous that it would not be

reasonable for the first defendant to have in ordinary

contemplation that such an extraordinarily unusual thing would

happen.

It is true and the authorities show that a reasonable person

does have to have in contemplation that not everyone will

drive carefully, not everyone will drive well, and not

everyone will obey the road rules.  The High Court held in

Sibley v Kais (1967) 118 CLR 424 at 427:

"Therefore, it is, in our opinion rightly said that the 'right hand rule' is not the be all and end all in relation to questions of civil responsibility.  The obligation of each driver of two vehicles approaching an intersection is to take reasonable care.  What amounts to 'reasonable care' is, of course, a question of fact but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, should he find another vehicle approaching from his right or from his left in such a fashion that, if both vehicles continue, a collision may reasonably be expected."

But it would be inconsistent with common sense for drivers to

have to assume that every other driver will drive extremely

dangerously, putting their lives at risk, so that other

drivers are forced to drive so slowly and so defensively that

the traffic would almost certainly come to a halt.

So, I accept that the first defendant had no reason to think

that the plaintiff's car would not stop on the broken line.

He had, therefore, no reason to take any evasive action

against the almost bizarre possibility that the plaintiff

would drive on to that main road directly into his path.

The first opportunity that the first defendant sensibly had to

consider that that was indeed what was going to happen was

when the Mazda in fact moved over the line and proceeded to
drive directly in front of him.  At that moment the first

defendant really had only a split second to react.  In

accordance with what is the usual reaction of people, he put

on his brake and he turned to the right to get away from the

situation.

In that split second he noticed that there was no traffic in

the two southbound lanes and so it was safe for him to go

there without endangering anyone else's life.  He reasoned

that he could not go into the left lane because he had noticed

or at least thought he'd noticed a motor vehicle in that lane

and if he moved into the lane he would endanger that person's

life.

Going straight ahead would, in my view, lead to the distinct

possibility that he would be ploughing straight into the car

as it moved out.  As it happens, by a matter of

reconstruction, Dr Ludcke has been able to work out that had

the truck driver continued on his trajectory and had the

plaintiff not braked, then the accident may well have been

avoided but, as Mr Sharps said, he thought that once the Mazda

driver realised he was there he would brake, and that seems to

me to be entirely reasonable.  Had he kept going straight

ahead in that situation he would of course have driven  

straight into the plaintiff's car.

All of these hypothetical situations are interesting but the

question is was there any deviation from the behaviour

expected of a reasonable person by the truck driver as soon as

he realised that the dangerous situation had occurred in

braking and turning to his right to try and avoid it.  The

decision of the High Court in Byrnes v Snare (1986) 4 MUR 97;

(1986) 66 ALR 296 is strong authority for the proposition that

a driver who is proceeding with due care cannot be criticised

for an incorrect decision in the agony of the moment.  In my

view, it could not be said that the first defendant failed to

exercise any reasonable care and, therefore, his actions did

not contribute to the outcome.

In his evidence he struck me as an honest man doing his best

to recall precisely what had happened when such a catastrophic

event occurred and, in my view, during the catastrophic event

he behaved reasonably and did his best to try to avoid

injuring the plaintiff who put himself in such peril by his

foolhardy actions.

By saying that, I'm not trying to attribute any moral

opprobrium on the plaintiff.  He was a young man.  Young men

do unfortunately sometimes drive foolishly but the accident

that occurred was entirely due to the plaintiff's negligence

and, in my view, the plaintiff has failed to prove that any

contribution to the accident was due to the negligence of the

first defendant.

...

HER HONOUR:  Judgment should be entered for the defendants.

On the question of costs, the second defendant's counsel has

informed me that in view of the plaintiff's situation it has

no present intention to execute any order for costs.

In those circumstances, I am not minded to make an order for

costs.  I reserve the question of costs.  However, should the

circumstances change I give each party liberty to apply to me

should they seek a costs order.  

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