Vos v Hawkswell

[2009] QDC 332

DISTRICT COURT OF QUEENSLAND

CITATION:

Vos v Hawkswell & Anor [2009] QDC 332

PARTIES:

GLENN JOHN VOS
(Plaintiff)
v
RAYMOND HAWKSWELL
and
RACQ INSURANCE LIMITED (ABN 50 009 704 152)
(Defendants)

FILE NO/S:

D88/08

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Toowoomba

DELIVERED ON:

23 October 2009

DELIVERED AT:

Brisbane

HEARING DATE:

7 September – 9 September 2009

JUDGE:

Searles DCJ

ORDER:

PLAINTIFF’S CLAIM DISMISSED WITH COSTS

CATCHWORDS:

NEGLIGENCE – PERSONAL INJURIES MOTOR VEHICLE ACCIDENT

COUNSEL:

D. Keane – Plaintiff

M. O’Sullivan – Defendant

SOLICITORS:

Shine Lawyers – Plaintiff

Cooper Grace Ward – Defendant

1. The plaintiff claims damages for personal injury resulting from the alleged negligence of the defendant Raymond Hawkswell (defendant) in a collision on Hursley Road, Toowoomba on 30 April 2007 at between 5:30am and 6:00am. At the time the plaintiff was driving a factory HSV Commodore sedan SS V8 and the defendant was driving a 1980 F100 truck and pulling a three horse float containing three thoroughbred racehorses. The defendant estimated the combined weight of truck, float, and horses at 2.7 tonne.[1]  It is common ground that the defendant’s vehicle hit the plaintiff’s car square on from behind and that is evidenced by photographs of the Commodore post the accident.[2]

LIABILITY

[1]T1.68.25; 2.52.15; 2.98.55.

[2]Exhibit 3.

Plaintiff’s account of accident

1. At the time the plaintiff was a 45-year-old truck driver and is still a truck driver.  It is relevant that on either the Thursday or Friday evening prior to the Monday morning of the accident the plaintiff had endured the trauma of his daughter being admitted to hospital in Toowoomba suffering from a drug overdose as a result of an unsuccessful attempt on her life.

1. The plaintiff said that at about 5:45am on 30 April 2007 he was driving his Commodore at about 55kph to 60kph[3] along Wyalla Road towards Hursley Road.  The weather was fine and dry[4] but it was very dark.  From his knowledge of the area he knew that there were people and horses at that time of day, in the area of Wyalla Road[5] running alongside the Clifford Park Racetrack.  For that reason he drove with his lights on high beam. 

   [3]T1.68.45.

   [4]T1.70.55.

   [5]T1.9; 1.10.

1. As he drove along Wyalla Street, approaching the driveway into Clifford Park he noticed the defendant’s truck and float emerging from Clifford Park and immediately dropped his high beam to low beam.

1. He thought the defendant would stop and give way to him but said he did not, but rather moved straight out onto Wyalla Road and pulled out in front of the plaintiff causing him to break severely.  The plaintiff’s reaction was to flash his high beam at the defendant “to let him know that was a silly thing to do”.

1. Both vehicles then continued along Wyalla Street to the Hursley Road intersection.  The plaintiff said the defendant turned left into Hursley Road at a speed of about 10-20kph.[6]  He followed the defendant around the corner and as soon as it was all clear he over…