Thurgar v Gollschewski

[2002] QCA 430

SUPREME COURT OF QUEENSLAND

CITATION:

Thurgar v Gollschewski & Ors [2002] QCA 430

PARTIES:

LORNE ALEXANDER THURGAR
(plaintiff/respondent)
v
KEVIN GOLLSCHEWSKI AND JANINE GOLLSCHEWSKI
(first defendants)
AUSTRALIAN ASSOCIATED MOTOR INSURERS LIMITED ACN 004 791 744
(second defendant/appellant)

FILE NO/S:

Appeal No 2521 of 2002
DC No 2960 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

18 October 2002

DELIVERED AT:

Brisbane

HEARING DATE:

21 August 2002 

JUDGES:

Davies and Jerrard JJA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs to be assessed on the standard basis.

CATCHWORDS:

TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – PARTICULAR CASES – ROAD ACCIDENT CASES – where learned trial judge found that negligence of first defendant was the sole cause of a collision between first defendant and plaintiff/respondent – where appellant contends that the respondent should be held equally or to some degree responsible because he neglected his own safety – where learned trial judge found that respondent took all reasonable care for his own safety – whether contributory negligence should be found on the part of the respondent     

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – PARTICULAR CIRCUMSTANCES – where second defendant/appellant contends that the amounts awarded to the respondent for loss of earnings pre-trial and future economic loss should be reduced further than what the learned trial judge allowed – where appellant contends that the 15 year period, estimated by the respondent as the time in which he would have worked in a particular area of the police force had the accident not occurred, was excessive – where appellant contends that the learned trial judge did not make sufficient allowance for other employment possibilities of the respondent – whether such discretionary findings of learned trial judge should be disturbed 

Traffic Regulations 1962 (Qld), reg 25(b)

Abela v Giew (1965) 65 SR (NSW) 485, cited
Braund v Henning (1988) 79 ALR 417, distinguished
Lopresto v Golding (1957) 31 ALJR 851, cited
Tucker v McCann [1948] VLR 222, cited
Twiehaus v Morrison & Anor [1947] NZLR 197, applied

COUNSEL:

M Grant-Taylor SC, with P D Corkery, for the appellant
S CWilliams QC, with D L K Atkinson, for the respondent

SOLICITORS:

Deacons Lawyers for the appellant
Maurice Blackburn Cashman for the respondent

1. DAVIES JA: I agree with the reasons for judgment of Jerrard JA and with the orders he proposes.

1. JERRARD JA: At about 9.00 a.m. on 4 October 1998 the respondent Lorne Thurgar was riding his motor cycle northwards along the Wivenhoe/Sommerset Dam Road at a steady 100kmph when he came up behind a Commodore car driven by Kevin Gollschewski, which was towing a trailer carrying a load of lucerne hay two bales deep.  Mr Gollschewski’s vehicle was travelling at a steady 60kmph.  The plaintiff…