Sellers-McGee v Hamwood

[2011] QCA 168

SUPREME COURT OF QUEENSLAND

CITATION:

Sellers-McGee v Hamwood & Anor [2011] QCA 168

PARTIES:

KAINOA SELLERS-MCGEE by his Litigation Guardian MAHINA SELLERS
(appellant)
v
MARGARET LEANNE HAMWOOD
(first respondent)
RACQ INSURANCE LTD
ABN 50 009 704 152
(second respondent)

FILE NO/S:

Appeal No 2210 of 2011
SC No 8 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Mackay

DELIVERED EX TEMPORE ON:

19 July 2011

DELIVERED AT:

Brisbane

HEARING DATE:

19 July 2011

JUDGES:

Chief Justice, P D McMurdo and Dalton JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal dismissed;

2. The appellant pay the first respondent’s costs, to be assessed on the standard basis.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – OTHER MATTERS – APPORTIONMENT OF LIABILITY – where appellant suffered personal injuries after a collision between his pit bike and the first respondent’s car – where appellant was aged 12 and a half years old – where appellant was aware that he should not have been driving on the road and that he should give way to the right – where the appellant did not give way to his right – where the first respondent failed to look to her left when approaching the intersection – where liability was apportioned at 75 per cent to the appellant and 25 per cent to the first respondent – whether the trial judge’s findings of fact should be interfered with – whether the apportionment of liability was unreasonable or plainly unjust

Civil Liability Act 2003 (Qld)

Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78, cited
Pennington v Norris (1956) 96 CLR 10; [1956] HCA 26, considered
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; [1985] HCA 34, cited
Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Coy Pty Ltd (2001) 53 NSWLR 626; [2001] NSWCA 461, cited
Sibley v Kais (1967) 118 CLR 424; [1967] HCA 43, cited

COUNSEL:

K C Fleming QC for the appellant
G C O’Driscoll for the respondents

SOLICITORS:

Wallace & Wallace Lawyers for the appellant
Quinlan, Miller & Treston Lawyers for the respondents

1. CHIEF JUSTICE: The appellant suffered personal injuries on the 16th of January 2007 when a motor vehicle driven by the first respondent collided with the small motorcycle he was driving, at a suburban intersection in Mackay.  The motorcycle was called a “pit bike”, such as is used for recreational purposes.  The appellant was then aged only 12 and a half years, and appreciated that he should not have been driving the cycle on the road.  He failed to give way to the motor vehicle, which had been approaching from his right. 

1. Because the first respondent motorist had not looked to her left as she approached the intersection, the learned Judge found her negligent for having failed to keep a proper lookout.  See Sibley v Kais (1967) 118 CLR 424 at 427.

1. As to the appellant, the Judge found that he knew of a motorist’s obligation to give way to a vehicle approaching from the right, and that he was travelling too fast.  He made an “error of judgment”, thinking he “could beat the car across the intersection”. 

1. Having referred to the relevant provisions of the Civil Liability Act 2003 and Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529, his Honour apparently carefully balanced the relevant factual circumstances and concluded that the appellant ought to bear the majority of the blame. He apportioned 75 per cent responsibility to the appellant and 25 per cent to the first respondent.

1. The appellant appeals against that judgment on the basis that the apportionment of 75 per cent responsibility to him was “unreasonable or plainly unjust”:  see Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Coy Pty Ltd [2001] NSWCA 461. Counsel for the appellant submits that there should have been an equal apportionment of liability.

1. The basis of the challenge to the apportionment is factual.  It challenges various findings of fact made by the Judge, and the evaluative process through which he went.  In particular, the Notice of Appeal includes contentions that: the Judge erred in relying against the appellant on answers he gave to a police officer on the 4th of April 2007 to the effect that he was, at the time of the incident, aware of the right of way rule;  that the Judge placed too much weight on the first respondent’s evidence as to the size of the cycle; that the Judge had too much regard to the evidence of a postal officer who gave evidence, having witnessed the collision, as to the appellant’s cycle’s speed; that the Judge erred in finding that the appellant’s cycle was travelling too fast; that his Honour failed to have proper regard to the appellant’s age, level of maturity and level of experience;  that he erred in finding that the first respondent's visibility was restricted as her vehicle approached the intersection; and so on.

1. In Pennington v Norris (1956) 96 CLR 10, at 15-16, the High Court emphasised that the appeal court should allow “much latitude” to the judgment of a primary Judge who has exercised the “very wide discretion” involved in apportioning liability in situations like this.

1. The principal factual challenges mounted by the appellant concerned the Judge’s finding that he knew the right of way rule at the time; and that his cycle was travelling too fast; and as to his Honour’s approach to the issue of the size of the cycle and the motorist’s field of vision as she approached the intersection.

1. I deal with the first matter first, albeit it featured lower down in the scale of Mr Fleming’s challenge.  About three months after the accident, the appellant told the police officer, in the presence of his father, that he knew of the obligation to give way to the right.  At the trial, the appellant said in evidence that he could not recall having said that, and that he believed that he did not at the time of the incident appreciate the rules of the road.  The learned Judge accepted the appellant’s statement to the police officer, and implicitly rejected the appellant’s contrary evidence given at the trial.  That course was plainly open to the Judge.  Insofar as it is now suggested that the appellant’s knowledge in January may have been different from his knowledge when interviewed in April, his evidence at the trial was that he had not in the interim done any “course of study...in relation to the road rules and regulations”.  If his knowledge in April had been different from that of January, one would have expected the appellant to give evidence of that fact and the reason, such as that after the accident someone told him that he should have given way, thus explaining why his answers given in April may be read as disclosing his knowledge only as at that later time.

1. The appellant claimed in his oral evidence to have been somewhat intimidated by the interviewing police officer, whom the Judge nevertheless described as “affable”, inferentially rejecting that claim.  Had there been any substance to it, one might have expected the appellant’s father to give evidence in support of it, or his absence as a witness to be explained.  There is no substance to the challenge to the Judge’s finding that at the time of the collision, the appellant knew he should have yielded way to the first respondent’s vehicle.

1. As to the evidence of speed, the postal officer, who was an experienced motorcyclist, observed the appellant’s cycle over an appreciable period.  She was herself familiar with such vehicles and gave evidence, based on the sound of the motor, that the throttle was substantially open because of its high revving.  She described the speed of the cycle as “quite fast”.  Referring to the revving, she said it was “very, very hard...very fast in first gear or very fast in second gear.  You’re not idling, you’re not gently riding the bike...it’s a good throttle”.  The Judge concluded that the appellant was travelling too fast, and notwithstanding Mr Fleming’s criticisms, that conclusion was open and not vulnerable on any of the bases set out in cases like in Devries v Australian National Railways Commission (1993) 177 CLR 472, 479.

1. As to the other matters, Mr Fleming QC, who I should have said earlier appeared for the appellant, criticised his Honour’s reference to the “small” size of the bike and the “difficulties” of the motorist’s approach because of the presence of fences, suggesting that the Judge regarded the bike as smaller than it actually was and the navigational difficulty as higher than it actually was.  It suffices to say that his Honour’s approach was open.

1. The Judge noted the appellant’s age and lack of experience.  But the difficulty faced by the appellant, notwithstanding those features, stemmed from his awareness, as found, that he had been obliged to give way to the first respondent’s vehicle approaching from his right.  Additionally, driving the cycle for the first time on the roadway, knowing that he should not have been doing so, one might have expected a person even of his youth and comparative lack of maturity to appreciate the need for considerable care - such as he ordinarily exercised when riding his pushbike in the proximity of motor vehicles.  Yet he chose to drive too fast and take the risk of trying to “beat” the car across the intersection.

1. It was open for the Judge to make the apportionment he made.  It would be quite inconsistent with authority for this Court to interfere either with the Judge’s findings of fact, which were open, or his wide discretionary judgment involved in the apportionment exercise.  In fairness to the Judge, it should be noted that his reasons for judgment exhibit a close command of the evidence, appreciation of the applicable legal principles and an appropriately careful balancing of the relevant circumstances involved in the apportionment exercise.

1. I would dismiss the appeal and order that the appellant pay the first respondent’s costs, to be assessed on the standard basis.

1. McMURDO J:  I agree.

1. DALTON J:  I agree.

1. CHIEF JUSTICE:  Those are the orders.