Read v Nominal Defendant - [2007] QSC 297

SUPREME COURT OF QUEENSLAND

CITATION:

Read v Nominal Defendant [2007] QSC 297

PARTIES:

GARY HEATH READ
Plaintiff

v

NOMINAL DEFENDANT
Defendant

FILE NO/S:

DIVISION:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

18 October 2007

DELIVERED AT:

Brisbane

HEARING DATE:

1 October 2007

JUDGE:

White J

ORDER:

Judgment for the plaintiff in the sum of four million dollars ($4,000,000)

CATCHWORDS:

TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – LIABILITY OF DRIVERS OF VEHICLES – MISCELLANEOUS CASES – where the plaintiff was driving a motorcycle – where the plaintiff claims he was forced to swerve to avoid another vehicle driving on the incorrect side of the road – where the plaintiff crashed into a culvert on the side of the road – where the driver of the other vehicle is unable to be located – where the plaintiff suffers serious physical injury – where the Nominal Defendant claims there was no other vehicle

TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – ACTIONS FOR NEGLIGENCE – EVIDENCE – ADMISSIBILITY OF EVIDENCE – where the plaintiff’s account was challenged in cross-examination as recent invention – where the plaintiff wishes to lead evidence of a prior out of court statement – whether a prior consistent statement is admissible

TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – PARTICULAR CASES – ROAD ACCIDENT CASES – whether the plaintiff was travelling at an excessive speed – whether the plaintiff failed to drive with due care and attention and maintain a proper lookout

Motor Accident Insurance Act 1994 (Qld), s 37

Fox v Percy (2003) 214 CLR 118, applied
Green v Hanson Construction Material Pty Ltd [2007] QCA 260
The Nominal Defendant v Clements (1960) 104 CLR 476, applied
R v Martin [1996] SASR 590, cited

Van Muyen v The Nominal Defendant (Qld) [2002] QSC 344, cited

COUNSEL:

Mr PV Ambrose SC with Mr ST Farrell for the plaintiff

Mr SC Williams QC with Mr RF King-Scott for the defendant

SOLICITORS:

Gabriel Ruddy & Garrett for the plaintiff

Gadens Lawyers for the defendant

The plaintiff sustained serious injury when he came off his motorbike at Bellmere near Caboolture at about 12.15pm on 14 July 1998. He claims he was forced off the road to avoid colliding with an unidentified motor vehicle coming towards him on its incorrect side of the highway and causing his motorbike to collide with a cement culvert set back from the road.

The plaintiff sustained a fracture of the fifth vertical vertebrae and as a consequence has tetraplaegea below C6.

Quantum has been agreed between the parties in the sum of $4,000,000.

Liability is contested. The Nominal Defendant contends that there was no unidentified motor vehicle relevantly involved in the plaintiff’s accident, that is, either there was no car at the place the plaintiff came off his motorbike or, if there was, the driver was not causally negligent. If liability is established, the Nominal Defendant contends that the plaintiff was contributorily negligent in that he was going too fast for…

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 Read v Nominal Defendant

Details

AGLC: Read v Nominal Defendant [2007] QSC 297
Case: [2007] QSC 297
Decision Date: 18 October 2007

CaseChat Overview and Summary

The plaintiff, a motorcyclist, brought an action against a nominal defendant, asserting that a road accident causing him serious injuries was caused by the negligent driving of another vehicle. The plaintiff claimed that he had to swerve to avoid a vehicle that was driving on the wrong side of the road, resulting in a crash into a culvert. The driver of the other vehicle could not be located, and the nominal defendant denied the plaintiff's claims, asserting that there was no other vehicle. The plaintiff sought damages for his injuries, pain, and suffering.

The court was required to determine whether the plaintiff's account of the accident was true and whether the plaintiff had acted negligently, contributing to the accident. The court also needed to consider whether a prior consistent statement made by the plaintiff could be admitted as evidence to counter the defendant's claim that the plaintiff's account was a recent invention. The plaintiff sought to introduce a prior consistent statement as evidence, arguing that it was relevant to rebut the defendant's claim.

The court found that the plaintiff's account of the accident was credible and that the plaintiff had not acted negligently, contributing to the accident. The court held that the prior consistent statement was admissible as it was relevant to rebut the defendant's claim that the plaintiff's account was a recent invention. The court found that the defendant was liable for the plaintiff's injuries and awarded the plaintiff damages of four million dollars ($4,000,000).

Orders

Orders of the court

Judgment for the plaintiff in the sum of four million dollars ($4,000,000)

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:	Read v Nominal Defendant [2007] QSC 297
PARTIES:	GARY HEATH READ Plaintiff v NOMINAL DEFENDANT Defendant
FILE NO/S:
DIVISION:	Trial Division
PROCEEDING:	Claim
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	18 October 2007
DELIVERED AT:	Brisbane
HEARING DATE:	1 October 2007
JUDGE:	White J
ORDER:	Judgment for the plaintiff in the sum of four million dollars ($4,000,000)
CATCHWORDS:	TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – LIABILITY OF DRIVERS OF VEHICLES – MISCELLANEOUS CASES – where the plaintiff was driving a motorcycle – where the plaintiff claims he was forced to swerve to avoid another vehicle driving on the incorrect side of the road – where the plaintiff crashed into a culvert on the side of the road – where the driver of the other vehicle is unable to be located – where the plaintiff suffers serious physical injury – where the Nominal Defendant claims there was no other vehicle TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – ACTIONS FOR NEGLIGENCE – EVIDENCE – ADMISSIBILITY OF EVIDENCE – where the plaintiff’s account was challenged in cross-examination as recent invention – where the plaintiff wishes to lead evidence of a prior out of court statement – whether a prior consistent statement is admissible TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – PARTICULAR CASES – ROAD ACCIDENT CASES – whether the plaintiff was travelling at an excessive speed – whether the plaintiff failed to drive with due care and attention and maintain a proper lookout Motor Accident Insurance Act 1994 (Qld), s 37 Fox v Percy (2003) 214 CLR 118, applied Green v Hanson Construction Material Pty Ltd [2007] QCA 260 The Nominal Defendant v Clements (1960) 104 CLR 476, applied R v Martin [1996] SASR 590, cited Van Muyen v The Nominal Defendant (Qld) [2002] QSC 344, cited
COUNSEL:	Mr PV Ambrose SC with Mr ST Farrell for the plaintiff Mr SC Williams QC with Mr RF King-Scott for the defendant
SOLICITORS:	Gabriel Ruddy & Garrett for the plaintiff Gadens Lawyers for the defendant