Spencer v Downie - [2019] QSC 98

SUPREME COURT OF QUEENSLAND

CITATION:

Spencer v Downie and Anor [2019] QSC 98

PARTIES:

CHRISTOPHER JOHN SPENCER

(plaintiff)

v
NOEL STANLEY DOWNIE

(first defendant)

AND

AAI LIMITED ABN 48 005 297 807

(second defendant)

FILE NO/S:

No 12677 of 2016

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

12 April 2019

DELIVERED AT:

Rockhampton

HEARING DATE:

21 and 22 March 2019

JUDGE:

Crow J

ORDER:

1. Judgment for the Plaintiff against the Second Defendant for $639,127.99.

2. The Second Defendant pay the Plaintiff’s costs of and incidental to the proceeding assessed on the indemnity basis.

CATCHWORDS:

TORTS – NEGLIGENCE – GENERALLY – where plaintiff claims damages for injuries suffered while riding his motorcycle – where plaintiff alleges the defendant failed to keep a prior lookout and use indicators prior to turning – where plaintiff attempted to pass vehicle and lost control of motorcycle – where plaintiff has a pre-existing injuries

Civil Liability Act 2003 (Qld)
Civil Liability Regulation 2003 (Qld)

Allwood v Wilson & Anor [2011] QSC 180
Berwick v Clark& Anor [2018] QSC 116
Hopkins v WorkCover [2004] QCA 155
Davie v Magistrates of Edinburgh [1953] SC 34
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Watts v Rake (1960) 108 CLR 158
Purkess v Crittenden (1965) 114 CLR 164

Heywood v Commercial Electrical Pty Ltd [2013] QCA 270
Fox v Wood (1981) 148 CLR 438

COUNSEL:

M Grant-Taylor QC and P Feely for the plaintiff

WDP Campbell for the defendant

SOLICITORS:

Jensen McConaghy for the Defendants

McInnes Wilson for the plaintiff

Liability

On 21 February 2013 at approximately 7.45am an accident occurred adjacent to premises of N & WA Oppermann Transport at 24087 Burnett Highway EidsFvold. The vehicles involved were a Yamaha motorcycle being ridden by Mr Spencer and a Kenworth T401 “superdog” tanker trailer.[1] In the location of the accident the Burnett Highway runs from Monto in the north to Eidsvold then Mundubbera in the south. At approximately half way along the Burnett Highway from Monto to Mundubbera is the township of Eidsvold. The Oppermann Transport property is a few kilometres to the north of Eidsvold.
[1] T2-8/28
Mr Spencer had for approximately 12 months prior to the accident lived at 1 Fairy Street Abercorn. Abercorn is a country town northwest of Eidsvold. It was suggested to Mr Spencer that Abercorn was a small township of only 15 residents. Mr Spencer’s reply was that he thought 15 people was an exaggeration.[2]
[2] T1-29/34.
At the time of the accident Mr Spencer was employed by Mr and Mrs Seth as an electrical tradesman within their business of Mundubbera Electrical. On the morning of 21 February 2013, Mr Spencer was undertaking his usual journey to work. Mr Spencer left his residence at 1 Fairy Street Abercorn and rode his Yamaha motorcycle in a southerly direction upon the Abercorn Road until that road joined the Burnett Highway. Mr Spencer then rode in a southerly direction along the Burnett Highway towards Eidsvold and Mundubbera.…

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 Spencer v Downie

Details

AGLC: Spencer v Downie [2019] QSC 98
Case: [2019] QSC 98
Decision Date: 12 April 2019

CaseChat Overview and Summary

In the matter of Spencer v Downie, the plaintiff, Mr Spencer, sought damages for injuries sustained while riding his motorcycle. The incident occurred when the defendant, Mr Downie, failed to signal his intention to turn, leading to Mr Spencer losing control of his motorcycle and colliding with Mr Downie's vehicle. The plaintiff alleged that Mr Downie's negligence in not keeping a proper lookout and using indicators contributed to the accident. Mr Spencer also contended that his pre-existing injuries were exacerbated by the collision. The case was heard in the Supreme Court of Queensland.

The central legal issues before the court involved determining whether Mr Downie breached his duty of care by failing to use indicators and maintain a proper lookout, and if this breach directly caused Mr Spencer's injuries. Additionally, the court had to consider the extent to which Mr Spencer's pre-existing injuries contributed to his overall damages. The court examined the evidence presented, including witness testimonies and expert opinions on the impact of Mr Downie's actions and the extent of Mr Spencer's injuries.

The court found that Mr Downie did indeed breach his duty of care by failing to use indicators and not keeping a proper lookout, which directly contributed to the accident. The evidence established that Mr Spencer's pre-existing injuries were aggravated by the collision, and the court assessed the total damages accordingly. Consequently, the court awarded judgment in favour of Mr Spencer against Mr Downie for the sum of $639,127.99. The court also ordered that Mr Downie pay Mr Spencer's costs of the proceeding on an indemnity basis.

Orders

Orders of the court

1. Judgment for the Plaintiff against the Second Defendant for $639,127.99.

2. The Second Defendant pay the Plaintiff’s costs of and incidental to the proceeding assessed on the indemnity 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:	Spencer v Downie and Anor [2019] QSC 98
PARTIES:	CHRISTOPHER JOHN SPENCER (plaintiff) v NOEL STANLEY DOWNIE (first defendant) AND AAI LIMITED ABN 48 005 297 807 (second defendant)
FILE NO/S:	No 12677 of 2016
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Rockhampton
DELIVERED ON:	12 April 2019
DELIVERED AT:	Rockhampton
HEARING DATE:	21 and 22 March 2019
JUDGE:	Crow J
ORDER:	1. Judgment for the Plaintiff against the Second Defendant for $639,127.99. 2. The Second Defendant pay the Plaintiff’s costs of and incidental to the proceeding assessed on the indemnity basis.
CATCHWORDS:	TORTS – NEGLIGENCE – GENERALLY – where plaintiff claims damages for injuries suffered while riding his motorcycle – where plaintiff alleges the defendant failed to keep a prior lookout and use indicators prior to turning – where plaintiff attempted to pass vehicle and lost control of motorcycle – where plaintiff has a pre-existing injuries Civil Liability Act 2003 (Qld) Civil Liability Regulation 2003 (Qld) Allwood v Wilson & Anor [2011] QSC 180 Berwick v Clark& Anor [2018] QSC 116 Hopkins v WorkCover [2004] QCA 155 Davie v Magistrates of Edinburgh [1953] SC 34 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 Watts v Rake (1960) 108 CLR 158 Purkess v Crittenden (1965) 114 CLR 164 Heywood v Commercial Electrical Pty Ltd [2013] QCA 270 Fox v Wood (1981) 148 CLR 438
COUNSEL:	M Grant-Taylor QC and P Feely for the plaintiff WDP Campbell for the defendant
SOLICITORS:	Jensen McConaghy for the Defendants McInnes Wilson for the plaintiff