Parker v Borg

[2001] QSC 319

SUPREME COURT OF QUEENSLAND

CITATION:                   Parker v Borg & Ors [2001] QSC 319

PARTIES:  STEVEN MICHAEL PARKER

(Plaintiff)

v

CHRISTOPHER BORG

(First Defendant)

and

SUNCORP METWAY INSURANCE LIMITED

(Second Defendant)

and

NOMINAL DEFENDANT

(Third Defendant)

FILE NO:  S22/01

DIVISION:  Trial Division

DELIVERED ON:         29 August 2001

DELIVERED AT:         Rockhampton

HEARING DATES:       14 & 15 June 2001

JUDGE:  Dutney J

ORDERS:  Judgment for the plaintiff against the third defendant for the sum of $300,000.00

CATCHWORDS:            NEGLIGENCE - PERSONAL INJURY – whether plaintiff injured by the vehicle driven by the first defendant or some other unidentified vehicle – whether plaintiff guilty of contributory negligence

COUNSEL:  Mr D McMeekin for the Plaintiff

Mr R King-Scott for the First Defendant and Second

Defendant

Mr R Dickson for the Third Defendant

SOLICITORS:               Macrossan & Amiet for the Plaintiff

Barry Beaverson & Stenson for the First Defendant & Second Defendant

Walsh Halligan Douglas for the Third Defendant

2

[1]     DUTNEY J:   The plaintiff was struck by a vehicle as he walked to work at the Baker’s Creek meatworks on 11 June 1997.  The incident took place at about 6:10 am on an overcast morning.  At that time of year daylight in Mackay is around 6:10

– 6:15 am.  A few minutes either side of 6:10 am can, therefore, make a significant

difference to the available light.

[2]     The plaintiff was living at Broadsound Road at the time of the accident.  From Broadsound Road to the meatworks is estimated by the plaintiff to be about 2 km. The plaintiff’s practice was to walk to work each morning with his partner, Corina Surawski, who also worked at the meatworks.  The main journey was along the Bruce Highway to Main Street where the meatworks is located.

[3]     The stretch of the highway along which the plaintiff and Ms Surawski walked is wide, flat and straight.  There is one marked lane of traffic in each direction.  The left-hand boundary of each traffic lane is denoted by an unbroken white line.  To the left of the white line marking the edge of the carriageway is a bitumen shoulder of about 1m.  To the left of the bitumen shoulder is a grassy verge several metres wide. Subject to the light and traffic a driver heading towards Main Street from the north has a clear view of any person walking on the bitumen shoulder or grass verge for several hundred metres.

[4]     The journey described by the plaintiff that morning was as follows.  He crossed the highway and walked past 3 or 4 houses.  There is then a cane field, 2 houses, another canefield and a turf farm.  The plaintiff said that he and Corina walked in

3

single file on the edge between the grass verge and the bitumen shoulder.  The plaintiff’s arms were hanging at his side.  The bitumen shoulder of the road was commonly used by cyclists at that hour.  As the plaintiff approached the turf farm he heard a noise, felt his arm flung up in the air and saw a vehicle swerve back from

the shoulder to the carriageway.  The plaintiff’s arm was broken.

[5]     The description of the vehicle given in evidence by the plaintiff was of a white tray-

back utility with a black roll bar.  The driver was dark haired.

[6]     The plaintiff was wearing a pair of black tracksuit pants and a dark blue flannelette

shirt.  Ms Surawski was wearing a pink or white shirt.

[7]     When questioned by the police at the hospital after the accident the plaintiff made

no mention of the roll bar.

[8]     The plaintiff described the conditions as overcast but not dark.

[9]     Ms Surawski described the conditions as a little bit dark but daylight.  She says she heard a noise.  She turned and saw her partner rolling on the ground.  She turned back and saw a white utility tray-back veering back onto the carriageway.  She observed a tow bar and an inoperative left tail-light and registration plate light.  She saw the back of the driver’s head in the cabin and noted bushy hair.  She says she also saw a blue and white sticker on the back window of the cabin.  She didn’t

4

notice a roll bar.  Ms Surawski observed the vehicle leave the Bruce Highway into

Main Street.

[10]   Ms Surawski gave 2 statements near to the time of the incident, which were admitted into evidence.  One was given to the plaintiff’s solicitor on 17 June 1997 and the other to loss adjusters on 18 December 1997.  In the earlier statement Ms Surawski describes the vehicle she saw as a white tray-back utility with a tow bar arrangement under the tray and an inoperative left-hand tail-light.  She said she could not see the registration plate.

[11]   A Mr Warner gave evidence.  In the course of his evidence he corroborated the description of the vehicle given by the plaintiff in evidence.  Mr Warner was a friend of the plaintiff and Ms Surawski who also worked at the meatworks.  He came upon the scene very shortly after the incident and rendered assistance.  In cross examination Mr Warner said:

“When did you hear that?--- I’m not really sure.  It would – I’m thinking it was while he was lying down on the ground because one of the first things I was to say to him was, ‘Well, did you see who hit you’.  So – and that’s what he proceeded to tell me, that he knew it was a white ute with a black roll bar on the back, so whether it was .

. . ”

[12]   I was generally impressed with the evidence of Mr Warner and Ms Surawski.

[13]   I find that the vehicle which struck the plaintiff was a white tray-back utility with an inoperative left-hand tail-light.  I find that the vehicle had a tow bar arrangement under the tray and a roll bar on top of the tray.  On the basis of observations made in

5

dim light as the vehicle drove away I am not prepared to make any finding as to a

description of the driver.

[14]   The next day Ms Surawski identified the first defendant’s vehicle in the car park of the meatworks as the only one fitting the description.  The first defendant’s vehicle is a white tray-back utility with a roll bar and a tow bar arrangement.  It also has a blue and white sign on the back tailgate but I am not persuaded that Ms Surawski saw such a sign on the day.  This seems more likely to be a false recollection based on seeing the sign on the vehicle the following day and her subsequently persuading herself that the first defendant’s vehicle was the one involved.  I find that at the time the accident occurred it was daylight but gloomy.  It was thus most likely to have been between 6:10 and 6:15am.

[15]   The real issue in this case was whether the vehicle which hit the plaintiff was that

owned by the first defendant.

[16]   Mr Borg’s vehicle is shown in exhibit 31.  It fits the description of the vehicle which hit Mr Parker.  The attendance records of the meatworks show Mr Borg clocking on at 6:16 am on the morning of the incident which is consistent with the time I find the incident took place.  Mr Borg said that sometimes he would have a cigarette after arriving at work and before clocking on and sometimes he would clock on immediately.  Not surprisingly he has no specific recollection of what he did on this day.

6

[17]   Ms Surawski says that on the morning after the incident she went with a friend to the accident scene at 5 am and sat and watched vehicles pass.  She then went down to a position about 150m from the entrance to the meatworks and watched until she saw a white tray-back utility turn off the road.  She observed that it had only one tail-light although both brake lights were working.  She followed the vehicle into the meatworks and recorded its number.  It was the vehicle owned by the first defendant.

[18]   Ms Surawski says that on the morning she looked there was only one other car in the meatworks car park that matched the description of a white-tray back utility but was otherwise not really similar to the one she had seen the day before.

[19]   A constable Rickards gave evidence.  She interviewed both the plaintiff and Ms Surawski at the hospital on the day of the incident.  She asked each to identify any distinguishing features of the vehicle.  Neither identified the roll bar.  Ms Rickards examined the first defendant’s vehicle on 11 July.  On that occasion it did not have a faulty tail-light.  When Ms Rickards inquired of Mr Borg he indicated that he had not had the lights fixed in the recent past.

[20]   Mr Borg denies being the driver of the vehicle involved in the incident.  He denies having had faulty tail-lights on his vehicle.  I place little store in the first denial since that nature of the blow suffered by Mr Parker was such that a driver of a utility which had drifted off the road through inattention might well not feel the impact. Both Mr Parker and Ms Surawski recalled the vehicle swerving back onto the road.

7

[21]   A Mr Searston was called.  His evidence in chief was to the effect that he saw the plaintiff and Ms Surawski walking to work on that day.  He said he saw them at about 6 am on the edge of the carriageway.  They were on the meatworks side of the turf farm.  It was quite dark and they were difficult to spot.

[22]   Having seen Mr Searston I am satisfied that he is mistaken as to the occasion he saw the plaintiff and Ms Searston who habitually walked that way.  The time he saw them was too early.  He saw them closer to the meatworks than the scene of the incident.  That seems to me to be improbable.

[23]   In the light of all of the evidence I am not persuaded to the necessary standard that the vehicle which hit the plaintiff was that of the first defendant.  The description was vague.  Recent descriptions do not accord necessarily with descriptions given near to the time of the accident.  The vehicle itself is of a common type, particularly if  no  make  can  be  identified.    Not  all  vehicles  using  Main  Street  go  to  the meatworks.  It is a through road.  The fact that Ms Rickards inspected the vehicle and saw that the tail-lights were working is significant.  Even though there had been a lapse of time of a month since the incident there was no reason why Mr Borg would have appreciated that this was a significant identifying feature.  I am therefor not prepared to disbelieve him when he says the lights were working correctly a month before the inspection.  I do not consider either Ms Surawski or Mr Parker are being untruthful.  I am satisfied that Ms Surawski genuinely believes the vehicle she identified in the meatworks car park the day after the event is the vehicle involved.

8

I am not sure that her recollection has not been influenced by her belief that she identified the right vehicle.  I thus find that the plaintiff has not proved that the first defendant is responsible for the accident.

[24]   I find that responsibility for the accident rests with the third defendant.

[25]   I am satisfied that the driver of the vehicle which hit the plaintiff was negligent.  It was a straight stretch of road with clear visibility.  I am satisfied that the plaintiff was well off the carriageway and that the vehicle which struck him had drifted out of the carriageway and onto the shoulder of the road.

[26]   I am not satisfied that the plaintiff has contributed to his own injury.  While it is dangerous to wear dark clothes on a road at the time the plaintiff was walking that did not contribute to the accident.  The plaintiff was well clear of the carriageway. The car drifted onto the shoulder.  Even in dark clothes he should have been plainly visible on that road at that time to any driver paying attention.  I find that the plaintiff did not have his arm pointing out to the carriageway whether hitch hiking or otherwise

[27]   The parties have agreed quantum at $300,000.00.  I therefore give judgement for the

plaintiff against the third defendant for the sum of $300,000.00.