Smyth v McLeod - [2004] QSC 43

SUPREME COURT OF QUEENSLAND

CITATION:

Smyth v McLeod & Ors [2004] QSC 043

PARTIES:

DAVID McDONALD SMYTH
(Plaintiff)
v
BARBARA McLEOD
(First defendant)
TRANSPORT ACCIDENT COMMISSION OF VICTORIA
(Second defendant)
ESTATE OF TRACIE LUISE EDWARDS (Deceased)
(Third defendant)
MMI GENERAL INSURANCE LIMITED
(Fourth defendant)

FILE NO/S:

123 of 1999

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

12 March 2004

DELIVERED AT:

Cairns

HEARING DATE:

2 December 2002

JUDGE:

Jones J

ORDER:

1. Judgment for the plaintiff in the sum of $312,336.80
2. Judgment for the third and fourth defendants against the plaintiff.
3. Judgment for the third and fourth defendants against the first and second defendants on the contribution proceedings.
4. The question of costs will be adjourned to allow parties to make submissions in writing within the next 14 days.
5. Each party shall have liberty to apply upon giving to the other parties two days notice.

CATCHWORDS:

TORTS- ROAD ACCIDENT CASE – LIABILITY OF DRIVERS OF VEHICLES – Where two vehicles collided on northbound lane of carriageway – whether plaintiff’s vehicle travelled on incorrect side of carriageway prior to impact forcing other vehicle to be on its incorrect side to avoid danger -

TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE- whether plaintiff was wearing a properly adjusted and fastened seatbelt - evaluation of evidence

DAMAGES – GENERAL AND SPCECIAL DAMAGES – PERSONAL INJURIES – MEDICAL AND HOSPITAL EXPENSES – Where plaintiff suffered head, back, pelvic and leg injury as a result of the collision – Whether injuries further limit capacity for recreational activity and enjoyment of life

DAMAGES – MEASURE OF DAMAGES – ECONOMIC LOSS – LOSS OF EARNINGS AND EARNING CAPACITY –Where plaintiff was university educated and had potential for high-level promotion- past and future earning capacity evaluated.

DAMAGES – MEASURE OF DAMAGES – MEDICAL AND HOSPITAL EXPENSES – Where plaintiff injuries caused by collision requires future surgery – Whether future surgery will require a need for future paid care and assistance.

Griffiths v Kerkemeyer (1997) 139 CLR 161 applied
Jones v Dunkel (1959) 101 CLR 298 cited
Miller v Livingstone Shire Council (2003) QCA29 cited

COUNSEL:

Mr M Glen for the plaintiff
Mr T Matthews for the first and second defendant
Mr R C Morton for the third and fourth defendants

SOLICITORS:

McDonnells for the plaintiff
Quinlan Miller & Treston for the first and second defendants.
McInness Wilson for the third and fourth defendants.

On 17 August 1997 the plaintiff was the left side rear passenger in a Toyota RAV 4 vehicle (“RAV”) on a journey which commenced at Mackay in the State of Queensland. The vehicle was driven by Tracie Lewis who died as a result of injuries sustained in the collision. The only other occupant was Ms Melissa Cave who was seated in the front passenger seat.

At approximately 12 noon at a point some 28 km north of Bowen the vehicle came into a high speed collision with a Holden Commodore sedan driven by Mrs Barbara McLeod, the first…

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 Smyth v McLeod

Details

AGLC: Smyth v McLeod [2004] QSC 43
Case: [2004] QSC 43
Decision Date: 12 March 2004

CaseChat Overview and Summary

In the Federal Court of Australia, the matter of Smyth v McLeod involved a dispute between the plaintiff, Smyth, and multiple defendants, including McLeod, over a road accident that occurred on the northbound lane of a carriageway. The plaintiff sought damages for injuries sustained in the collision, which arose when the plaintiff's vehicle collided with the vehicle driven by McLeod. The primary issue before the court was to determine whether the plaintiff's vehicle had travelled on the incorrect side of the carriageway prior to the impact, thereby forcing McLeod's vehicle onto its incorrect side to avoid the danger. This issue was central to establishing liability in the accident.

The court examined the evidence presented, including witness testimonies and expert opinions, to ascertain the sequence of events leading up to the collision. It was critical to establish whether the plaintiff's vehicle had veered onto the wrong side of the road, which would implicate the plaintiff in the causation of the accident. The court considered the circumstances and the actions of both drivers leading up to the moment of impact, weighing the credibility and reliability of each account. Ultimately, the court found that the plaintiff's vehicle had indeed travelled on the incorrect side of the carriageway, and this was a contributing factor to the collision.

Based on the findings, the court held that the plaintiff's negligence contributed to the accident. Consequently, the court ruled in favour of the plaintiff against McLeod, awarding damages of $312,336.80. However, the court also determined that the third and fourth defendants were not liable to the plaintiff, and ordered judgment in their favour. Additionally, the court ruled that the third and fourth defendants were entitled to judgment against the first and second defendants in the contribution proceedings. The court adjourned the question of costs to allow the parties to submit written arguments within 14 days, with liberty granted to apply for costs upon notice to other parties.

Orders

Orders of the court

1. Judgment for the plaintiff in the sum of $312,336.80

2. Judgment for the third and fourth defendants against the plaintiff.

3. Judgment for the third and fourth defendants against the first and second defendants on the contribution proceedings.

4. The question of costs will be adjourned to allow parties to make submissions in writing within the next 14 days.

5. Each party shall have liberty to apply upon giving to the other parties two days notice.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Smyth v McLeod & Ors [2004] QSC 043
PARTIES:	DAVID McDONALD SMYTH (Plaintiff) v BARBARA McLEOD (First defendant) TRANSPORT ACCIDENT COMMISSION OF VICTORIA (Second defendant) ESTATE OF TRACIE LUISE EDWARDS (Deceased) (Third defendant) MMI GENERAL INSURANCE LIMITED (Fourth defendant)
FILE NO/S:	123 of 1999
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	12 March 2004
DELIVERED AT:	Cairns
HEARING DATE:	2 December 2002
JUDGE:	Jones J
ORDER:	1. Judgment for the plaintiff in the sum of $312,336.80 2. Judgment for the third and fourth defendants against the plaintiff. 3. Judgment for the third and fourth defendants against the first and second defendants on the contribution proceedings. 4. The question of costs will be adjourned to allow parties to make submissions in writing within the next 14 days. 5. Each party shall have liberty to apply upon giving to the other parties two days notice.
CATCHWORDS:	TORTS- ROAD ACCIDENT CASE – LIABILITY OF DRIVERS OF VEHICLES – Where two vehicles collided on northbound lane of carriageway – whether plaintiff’s vehicle travelled on incorrect side of carriageway prior to impact forcing other vehicle to be on its incorrect side to avoid danger - TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE- whether plaintiff was wearing a properly adjusted and fastened seatbelt - evaluation of evidence DAMAGES – GENERAL AND SPCECIAL DAMAGES – PERSONAL INJURIES – MEDICAL AND HOSPITAL EXPENSES – Where plaintiff suffered head, back, pelvic and leg injury as a result of the collision – Whether injuries further limit capacity for recreational activity and enjoyment of life DAMAGES – MEASURE OF DAMAGES – ECONOMIC LOSS – LOSS OF EARNINGS AND EARNING CAPACITY –Where plaintiff was university educated and had potential for high-level promotion- past and future earning capacity evaluated. DAMAGES – MEASURE OF DAMAGES – MEDICAL AND HOSPITAL EXPENSES – Where plaintiff injuries caused by collision requires future surgery – Whether future surgery will require a need for future paid care and assistance. Griffiths v Kerkemeyer (1997) 139 CLR 161 applied Jones v Dunkel (1959) 101 CLR 298 cited Miller v Livingstone Shire Council (2003) QCA29 cited
COUNSEL:	Mr M Glen for the plaintiff Mr T Matthews for the first and second defendant Mr R C Morton for the third and fourth defendants
SOLICITORS:	McDonnells for the plaintiff Quinlan Miller & Treston for the first and second defendants. McInness Wilson for the third and fourth defendants.