Suncorp Insurance and FAI General Insurance Co Ltd v Muhling

[1995] QCA 142

IN THE COURT OF APPEAL	[1995] QCA 142
SUPREME COURT OF QUEENSLAND

Appeal No. 179 of 1994

Brisbane
[Suncorp Insurance & Anor. v. Muhling & Ors.]

BETWEEN:

RODNEY VALENTINE MUHLING

(Plaintiff) Respondent

AND:

GRAHAM STANLEY BROWN

(First Defendant)

AND:

MARK JONES

(Second Defendant)

AND:

SUNCORP INSURANCE

(Defendant by Election) Appellant

AND:

FAI GENERAL INSURANCE CO. LTD.

(Second Defendant by Election)

Fitzgerald P.
Davies J.A.

McPherson J.A.

Judgment delivered 21/04/1995

Judgment of the Court

APPEAL DISMISSED WITH COSTS.

CATCHWORDS: NEGLIGENCE - PERSONAL INJURIES;

apportionment of negligence.

Counsel:	Ms. M. A. Wilson Q.C. for the appellant Mr. W. D. P. Campbell for the respondent
Solicitors:	O'Mara Patterson & Perrier for the appellant Walker Pender for the respondent

Hearing Date: 6 April 1995
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 179 of 1994

Brisbane

Before Fitzgerald P.
Davies J.A.
McPherson J.A.

[Suncorp Insurance & Anor. v. Muhling & Ors.]

BETWEEN:

RODNEY VALENTINE MUHLING

(Plaintiff) Respondent

AND:

GRAHAM STANLEY BROWN

(First Defendant)

AND:

MARK JONES

(Second Defendant)

AND:

SUNCORP INSURANCE

(Defendant by Election) Appellant

AND:

FAI GENERAL INSURANCE CO. LTD.

(Second Defendant by Election)

REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 21st day of April 1995

The appellant who was a defendant by election in an action for personal injuries in the trial division of this Court appeals, in effect, against the apportionment of negligence made by the learned Trial Judge which was as to 70% against the first defendant and 30% against the plaintiff respondent.

The accident which caused the plaintiff's injuries, in
respect of which he sued in the action, occurred in Johnson
Road, Browns Plains at about 3.30 p.m. on 28 November 1989.
Both the plaintiff, who was riding a Kawasaki motor cycle
and the first defendant who was driving a Holden motor car
were travelling in a northerly direction along that road.
The plaintiff had turned left into that road from Beaudesert
Road.

The first defendant also joined Johnson Road by turning left onto it from Central Court Road which joined Johnson Road a little over a hundred metres north of Beaudesert Road. In driving onto Johnson Road the first defendant drove across the plaintiff's path of travel to take up a position close to the centre line of Johnson Road. That manoeuvre caused the plaintiff to slow down to allow the first defendant to cross his path.

The first defendant, having moved to a position close to the centre line of Johnson Road, proceeded north along that road close to that centre line. Although, at the relevant time, the western carriageway of Johnson Road was not divided into lanes, it was, at this point and for about another 200 metres in a northerly direction, wide enough to carry two lanes of traffic. At a point about 200 metres north of its intersection with Central Court Road, Johnson Road narrowed. What would have been the continuation of the left northbound lane, if there were two such lanes, became, in part, a gravel verge. From the Central Court Road intersection to the gravel verge Johnson Road ran uphill, the gravel verge commencing shortly before the crest of that hill.

When the first defendant's vehicle moved to its position close to the centre line of Johnson Road the plaintiff resolved to overtake it on its left. As appears from what has been said, there was adequate room to do so. Indeed it is difficult to understand why the first defendant chose to take up a position so close to the centre line of Johnson Road thereby effectively preventing the plaintiff, or anyone else, from overtaking on his right hand side.

In order to overtake, the plaintiff increased his speed to approximately 80 kms. per hour. The first defendant, apparently in order to prevent the plaintiff's overtaking manoeuvre then deliberately accelerated to the same speed as that of the plaintiff. Both knew that Johnson Road narrowed in width at about the crest of the hill in front of them. What they did not know, and could not observe until they were almost upon it, was that there was a car parked on the gravel verge in the vicinity of the crest. It had been obscured from their view until they were quite close by the crest. By the time it came into the view of either driver it was impossible to avoid an accident of some kind. The plaintiff applied his brakes hard and lay his motor cycle on its side in an attempt to stop. It collided with the stationary vehicle in consequence of which the plaintiff suffered the injuries for which he sued.

There was no doubt that the plaintiff was negligent in attempting to overtake the first defendant's vehicle on its left hand side. He should have also known that he would probably need to exceed the speed limit in order to overtake it before the road narrowed at the crest. It was consequently a dangerous manoeuvre. He should have then slowed down when he observed the first defendant accelerating.

However the negligence of the first defendant, as the learned Trial Judge rightly thought, far exceeded that of the plaintiff. His attitude to other road users can perhaps be gathered from the way in which he drove from Central Court Road onto Johnson Road into the plaintiff's path and took up a position close to the centre line thereby preventing the plaintiff from overtaking him. But in deliberately accelerating to prevent the plaintiff from overtaking on his left hand side the first defendant deliberately put the plaintiff, who was all the more vulnerable because he was riding a motor cycle, in a situation of extreme danger, one of which he ought plainly to have been aware. It was a highly negligent act.

This is not a case in which an appellate court should refrain from interfering merely because of a reluctance to interfere with apportionments of negligence by Trial Judges.

It is a case in which the Trial Judge's apportionment was

plainly right.

The appeal must be dismissed with costs.