Owbridge v Murphy - [2002] QCA 197

SUPREME COURT OF QUEENSLAND

CITATION:

Owbridge v Murphy & Anor [2002] QCA 197

PARTIES:

PETER ANDREW OWBRIDGE
(plaintiff/respondent)
v
ARTHUR JOHN MURPHY
(first defendant/first appellant)
VACC INSURANCE COMPANY LIMITED
ACN 004 167 953
(second defendant/second appellant)

FILE NO/S:

Appeal No 8821 of 2001
SC No 9259 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

6 June 2002

DELIVERED AT:

Brisbane

HEARING DATE:

15 April 2002

JUDGES:

McMurdo P, Davies JA and Fryberg J
Separate reasons for judgment of each member of the Court; McMurdo P and Fryberg J concurring as to the orders made, Davies JA dissenting

ORDER:

Appeal dismissed with costs to be assessed

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE'S FINDING OF FACT – FUNCTIONS OF APPELLATE COURT – FINDINGS ON ISSUE OF NEGLIGENCE – CONTRIBUTORY NEGLIGENCE - where respondent was injured when his motorcycle collided with the first appellant's station wagon – where respondent was travelling at an excessive speed – where first appellant was turning right into his driveway at time accident occurred – where execution of the turn necessitated cutting across respondent's path of travel - where first appellant did not see respondent approaching prior to commencing his turn – where primary judge found that the first appellant, if keeping a proper lookout, should have seen the respondent's motorcycle and aborted the turn – whether the primary judge erred in finding the first appellant negligent – whether the apportionment of negligence was too favourable to the respondent

A V Jennings Construction Pty Ltd v Maumill (1956) 30 ALJR 100, considered
March v Stramare (1991) 171 CLR 506, considered
McPherson v Whitfield [1996] 1 QdR 474, considered
Pennington v Norris (1956) 96 CLR 10, considered

COUNSEL:

R J Douglas SC for the appellants
M Grant-Taylor SC for the respondent

SOLICITORS:

Gadens Lawyers for the appellants
Murphy Schmidt for the respondent

McMURDO P: On 29 October 1997, the respondent/plaintiff was injured when his motorcycle collided with the first appellant/defendant's late model Mitsubishi Verada station wagon. The second appellant/defendant is the first appellant's insurer. The appellants contend that the learned primary judge erred in finding the first appellant negligent and, alternatively, that the plaintiff was more than 40 per cent contributorily negligent, contrary to the findings of the primary judge.

The accident occurred on Buccan Road, Buccan, a semi-rural area in the Waterford/Beenleigh district at about 2.15pm. The plaintiff was riding his motorcycle in a northerly direction with its headlight illuminated; he was familiar with this section of Buccan Road. The first defendant was travelling south and slowed to execute a righthand turn into his driveway. This necessitated cutting across the plaintiff's path of travel. The speed limit was 80 kph. The residences are generally on large allotments and are not visible from the road. There are gaps in the centre line markings to allow drivers to turn across the road into the driveways of the homes. 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.

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Details

Case: [2002] QCA 197
Decision Date: 6 June 2002

CaseChat Overview and Summary

In the case of Owbridge v Murphy, the respondent, Murphy, was injured when his motorcycle collided with the station wagon of the first appellant, Owbridge. The dispute centred on the respective contributions of negligence by both parties to the accident. The matter was brought before the court of appeal by Owbridge, who sought to challenge the findings of the primary judge regarding negligence and contributory negligence. The primary judge had found that Owbridge was negligent for not aborting his turn into his driveway when he did not see Murphy's motorcycle approaching. The primary judge also apportioned a larger share of negligence to Murphy, considering his excessive speed at the time of the collision.

The court of appeal was tasked with determining whether the primary judge had erred in finding Owbridge negligent and whether the apportionment of negligence was too favourable to Murphy. The court considered the standard of care expected from Owbridge when turning into his driveway, the visibility conditions, and the speed at which Murphy was travelling. The appeal court acknowledged that the primary judge's findings were based on a careful assessment of the evidence and the context of the accident. The court found that the primary judge's conclusions were supported by the evidence and did not constitute an error of law.

The court of appeal concluded that the primary judge's findings of negligence and the apportionment of contributory negligence were correct. The appeal was dismissed, and costs were awarded to be assessed. The court held that the primary judge's assessment of the facts and the application of the law were appropriate, and there was no basis for the appeal to succeed.

Orders

Orders of the court

Appeal dismissed with costs to be assessed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Owbridge v Murphy & Anor [2002] QCA 197
PARTIES:	PETER ANDREW OWBRIDGE (plaintiff/respondent) v ARTHUR JOHN MURPHY (first defendant/first appellant) VACC INSURANCE COMPANY LIMITED ACN 004 167 953 (second defendant/second appellant)
FILE NO/S:	Appeal No 8821 of 2001 SC No 9259 of 2000
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	6 June 2002
DELIVERED AT:	Brisbane
HEARING DATE:	15 April 2002
JUDGES:	McMurdo P, Davies JA and Fryberg J Separate reasons for judgment of each member of the Court; McMurdo P and Fryberg J concurring as to the orders made, Davies JA dissenting
ORDER:	Appeal dismissed with costs to be assessed
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE'S FINDING OF FACT – FUNCTIONS OF APPELLATE COURT – FINDINGS ON ISSUE OF NEGLIGENCE – CONTRIBUTORY NEGLIGENCE - where respondent was injured when his motorcycle collided with the first appellant's station wagon – where respondent was travelling at an excessive speed – where first appellant was turning right into his driveway at time accident occurred – where execution of the turn necessitated cutting across respondent's path of travel - where first appellant did not see respondent approaching prior to commencing his turn – where primary judge found that the first appellant, if keeping a proper lookout, should have seen the respondent's motorcycle and aborted the turn – whether the primary judge erred in finding the first appellant negligent – whether the apportionment of negligence was too favourable to the respondent A V Jennings Construction Pty Ltd v Maumill (1956) 30 ALJR 100, considered March v Stramare (1991) 171 CLR 506, considered McPherson v Whitfield [1996] 1 QdR 474, considered Pennington v Norris (1956) 96 CLR 10, considered
COUNSEL:	R J Douglas SC for the appellants M Grant-Taylor SC for the respondent
SOLICITORS:	Gadens Lawyers for the appellants Murphy Schmidt for the respondent