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

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.

Because the first respondent motorist had not looked to her left as she approached the intersection,…

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: [2011] QCA 168
Decision Date: 19 July 2011

CaseChat Overview and Summary

Sellers-McGee, the appellant, appealed against a decision that apportioned liability for a personal injury claim. The appellant, who was 12 years and six months old at the time, collided with the first respondent's car while driving a pit bike on the road. The appellant admitted that he should not have been driving on the road and that he was aware he should have given way to his right. The first respondent, on the other hand, failed to look to her left when approaching the intersection. The trial judge apportioned liability at 75 per cent to the appellant and 25 per cent to the first respondent. The appellant contested the findings of fact and the apportionment of liability, arguing that it was unreasonable or plainly unjust.

The legal issues before the court were whether the trial judge's findings of fact should be interfered with and whether the apportionment of liability was unreasonable or plainly unjust. The court examined the evidence presented and the trial judge's reasoning to determine if the findings were open to challenge. The court also assessed whether the apportionment of liability was fair and just, considering the circumstances of the case.

The court found that the trial judge's findings of fact were open to challenge and that the apportionment of liability was reasonable and just. The court held that the appellant's age and inexperience did not excuse his failure to follow road rules, and that the first respondent's failure to look to her left contributed to the collision. The court also noted that the appellant's admission of fault and his young age were relevant factors in determining the apportionment of liability. The court concluded that the trial judge's findings and the apportionment of liability were not unreasonable or plainly unjust.

The appeal was dismissed, and the appellant was ordered to pay the first respondent's costs, to be assessed on the standard basis.

Orders

Orders of the court

1. Appeal dismissed;

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

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:	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