Trenerry, Hedge & Suncorp - [1996] QSC 77

IN THE SUPREME COURT
OF QUEENSLAND

Brisbane Writ No.2249 of 1987

Before the Hon. Mr Justice Shepherdson

[Trenerry, Hedge & Suncorp]

BETWEEN:
  HELEN TRENERRY by her next friend
  ELIZABETH MARY TRENERRY
  Plaintiff
AND:
  NEIL JOHN HEDGE
  First Defendant
AND:
  IAN BRUCE HEDGE
  Second Defendant
AND:
  SUNCORP INSURANCE & FINANCE
  Defendant by Election

JUDGMENT - SHEPHERDSON J.
Judgment delivered 14/05/1996

CATCHWORDS: NEGLIGENCE - PERSONAL INJURIES - single vehicle accident - plaintiff suffered head injury - pre-traumatic amnesia. Whether plaintiff or defendant was driver. Plaintiff 17 year old female at date of accident 25/10/82.

DAMAGES - brain damage. Since married and born two children. Substantial communication problem. Some lack of insight. Disinhibited conduct. Damages assessed at $2,120,343-55 excluding Public Trustees fee. Protection order made.

Counsel:Hampson Q.C. with him Morton for plaintiff
Williams Q.C. with him Myers for defendant by election.

Solicitors:Peter Shannan & Associates
MacGillivrays, town agents for Clewett, Corser & Drummond

Hearing date: 21 February 1996 - 1 March 1996

IN THE SUPREME COURT
OF QUEENSLAND

Brisbane Writ No.2249 of 1987

Before the Hon. Mr Justice Shepherdson

[Trenerry, Hedge & Suncorp]

JUDGMENT - SHEPHERDSON J.

Judgment Delivered 14 May 1996

In this action the plaintiff has claimed damages for personal injuries caused when a Holden utility motor vehicle registration 373-NRT collided with a tree on the western side of Blaxland South Road, Dalby at about 10 p.m. on 25 October 1982. So much is admitted on the pleadings.
          The plaintiff alleges that she was a passenger in the utility and that the first defendant Neil John Hedge was driving the utility at the time of the collision - the defendant by election alleges the plaintiff was driving at the material time.
          That the collision was caused by the negligence of the driver is not in dispute.
          Further, the defendant by election has alleged in the alternative that if the first defendant was the driver, his capacity to control the vehicle was impaired by his consumption of alcoholic liquor and that the plaintiff knew or ought to have known of such impaired capacity and in consequence, the defendant by election has pleaded against the plaintiff volenti non fit injuria and contributory negligence as well as no duty of care or reduced duty of care.
          A further defence pleaded is that, if the plaintiff is found to have been the passenger in the utility, she was guilty of contributory negligence in failing to wear the seat belt for that seat or in failing to have it properly adjusted and securely fastened.
The pleadings raise one other matter on the issue of liability. That matter arises from the fact that the plaintiff was born on 24 December, 1964 and was therefore just two months short of her 18th birthday on the date of the accident and the further fact that the…

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 Trenerry, Hedge & Suncorp

Details

AGLC: Trenerry, Hedge and Suncorp [1996] QSC 77
Case: [1996] QSC 77
Decision Date: 14 May 1996

CaseChat Overview and Summary

This case involved a personal injury claim brought by Helen Trenerry against Neil John Hedge, Ian Bruce Hedge, and Suncorp Insurance & Finance. Helen Trenerry claimed that she suffered severe injuries in a single-vehicle accident on 25 October 1982, and sought damages for pain, suffering, loss of amenities, impairment of earning capacity, past and future care, and other expenses. The defendants argued that the injuries were caused by the negligence of Helen Trenerry, who was allegedly the driver at the time of the accident, and not by the negligence of Neil John Hedge. The case raised issues such as who was the driver at the time of the accident, the extent of the injuries, and the liability of the defendants.

The court found that Neil John Hedge was the driver at the time of the accident, as he had admitted to Helen Trenerry that he was the driver and asked her not to tell the police. The court also found that the injuries sustained by Helen Trenerry were severe and included brain damage, substantial communication problems, and disinhibited conduct. The court assessed damages at $2,120,343.55, excluding the Public Trustee's fee, and made a protection order in favour of Helen Trenerry.

The court rejected the defence of the Statute of Limitations, finding that Helen Trenerry had been under a disability within the meaning of the Limitation of Actions Act 1974 between the date when her cause of action accrued and 13 June 1984, and was accordingly entitled to maintain the action. The court noted that the plaintiff had been incapable of managing her own affairs since the accident and had no capacity to instruct a solicitor or exercise reasonable judgment on a possible settlement.

In summary, the court found in favour of Helen Trenerry and against the defendants, awarding her substantial damages for the injuries she sustained in the accident. The court rejected the defence of the Statute of Limitations and held that Helen Trenerry was entitled to maintain the action despite her disability.

Orders