Tebbit v Dunne & Anor - [2009] QCA 86

SUPREME COURT OF QUEENSLAND

CITATION:

Tebbit v Dunne & Anor [2009] QCA 86

PARTIES:

SHANE ANTHONY TEBBIT
(plaintiff/respondent)
v
MATTHEW JAMES DUNNE
(first defendant /first appellant)
ALLIANZ AUSTRALIA INSURANCE LIMITED
ACN 000 122 850
(second defendant/second appellant)

FILE NO/S:

Appeal No 11403 of 2008
SC No 58 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Mackay

DELIVERED ON:

9 April 2009

DELIVERED AT:

Brisbane

HEARING DATE:

27 March 2009

JUDGES:

Muir JA, Mullins and Douglas JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs.

CATCHWORDS:

TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – ACTIONS FOR NEGLIGENCE – APPORTIONMENT OF DAMAGES – INTERSECTION AND JUNCTION ACCIDENTS – whether there had been any negligence by the respondent contributing to the accident – onus of proof – where appellant’s vehicle accelerated to its left at high speed from behind another vehicle close to intersection, overtook that vehicle and drove into intersection which the respondent’s motorcycle was then leaving and collided with it – where respondent had no memory of the collision

Transport Operations (Road Use Management – Road Rules) Regulation 1999 (Qld), s 147

Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; [1986] HCA 20, referred
Carter v Gilmore (1975) 49 ALJR 360 referred
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, referred
Impiombato v Unsworth [1969] QWN 8 referred
Nance v British Columbia Electric Railway Company Ld [1951] AC 601 referred
Sibley v Kais (1967) 118 CLR 424; [1967] HCA 43, referred
Thomas v Macfarlane [1969] Qd R 178 referred

COUNSEL:

S C Williams QC, with J Williams, for the first and second appellant
J Baulch SC, with P Cullinane, for the respondent

SOLICITORS:

Sciaccas Lawyers for the first and second appellant
Macrossan & Amiet for the respondent

MUIR JA: I agree with the reasons of Douglas J and with the order he proposes.

MULLINS J: I agree with Douglas J.

DOUGLAS J: At the trial of this action it was agreed that the respondent, Mr Tebbit’s, damages amounted to $520,000.00. The main issue was whether there had been any negligence by him contributing to the motor vehicle accident in which he suffered serious injuries. The learned trial judge found that the appellants had not established that Mr Tebbit was guilty of contributory negligence. This appeal challenges that conclusion and associated findings by his Honour. There is no appeal from his Honour’s conclusion that the first appellant, Mr Dunne, was negligent.

Background

The accident happened in Mackay on 2 April 2005 at about 7pm at the intersection of the Mackay-Bucasia Road and Phillip Street. Mr Tebbit was riding his motorcycle south along the Mackay-Bucasia Road and proceeded to make a right turn into Phillip Street to head west out of the intersection. It was dark.

Mr Dunne was driving in a northerly direction along the Mackay-Bucasia Road in…

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 Tebbit v Dunne & Anor

Details

AGLC: Tebbit v Dunne [2009] QCA 86
Case: [2009] QCA 86
Decision Date: 9 April 2009

CaseChat Overview and Summary

The case of Tebbit v Dunne & Anor involved a dispute concerning a road accident that resulted in a collision between the appellant's vehicle and the respondent's motorcycle. The appellant alleged that the respondent was negligent in contributing to the accident, which occurred at an intersection. The respondent, however, claimed no memory of the collision. The case was heard and determined by the Queensland Court of Appeal, with the appeal being dismissed.

The primary legal issue before the court was whether the respondent had any negligence contributing to the accident and, if so, to what extent the damages should be apportioned between the parties. The court was also required to consider the onus of proof in cases where the respondent has no memory of the collision. Another key issue was the interpretation and application of the relevant road rules and regulations, specifically section 147 of the Transport Operations (Road Use Management – Road Rules) Regulation 1999 (Qld).

In its reasoning, the court held that the appellant had demonstrated that the respondent's actions were negligent, specifically by accelerating to the left at high speed from behind another vehicle close to the intersection, overtaking that vehicle, and driving into the intersection where the respondent’s motorcycle was leaving, resulting in the collision. The court found that the appellant had discharged the onus of proof despite the respondent's lack of memory of the collision. The court concluded that the respondent's negligence was the primary cause of the accident and that the appellant's damages should not be reduced on the basis of contributory negligence. The appeal was dismissed, and the respondent was ordered to pay the appellant's costs.

Orders

Orders of the court

Appeal dismissed with costs.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Tebbit v Dunne & Anor [2009] QCA 86
PARTIES:	SHANE ANTHONY TEBBIT (plaintiff/respondent) v MATTHEW JAMES DUNNE (first defendant /first appellant) ALLIANZ AUSTRALIA INSURANCE LIMITED ACN 000 122 850 (second defendant/second appellant)
FILE NO/S:	Appeal No 11403 of 2008 SC No 58 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Mackay
DELIVERED ON:	9 April 2009
DELIVERED AT:	Brisbane
HEARING DATE:	27 March 2009
JUDGES:	Muir JA, Mullins and Douglas JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed with costs.
CATCHWORDS:	TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – ACTIONS FOR NEGLIGENCE – APPORTIONMENT OF DAMAGES – INTERSECTION AND JUNCTION ACCIDENTS – whether there had been any negligence by the respondent contributing to the accident – onus of proof – where appellant’s vehicle accelerated to its left at high speed from behind another vehicle close to intersection, overtook that vehicle and drove into intersection which the respondent’s motorcycle was then leaving and collided with it – where respondent had no memory of the collision Transport Operations (Road Use Management – Road Rules) Regulation 1999 (Qld), s 147 Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; [1986] HCA 20, referred Carter v Gilmore (1975) 49 ALJR 360 referred Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, referred Impiombato v Unsworth [1969] QWN 8 referred Nance v British Columbia Electric Railway Company Ld [1951] AC 601 referred Sibley v Kais (1967) 118 CLR 424; [1967] HCA 43, referred Thomas v Macfarlane [1969] Qd R 178 referred
COUNSEL:	S C Williams QC, with J Williams, for the first and second appellant J Baulch SC, with P Cullinane, for the respondent
SOLICITORS:	Sciaccas Lawyers for the first and second appellant Macrossan & Amiet for the respondent