Vos v Hawkswell

[2010] QCA 92

SUPREME COURT OF QUEENSLAND

CITATION:

Vos v Hawkswell & Anor [2010] QCA 92

PARTIES:

GLENN JOHN VOS
(plaintiff/appellant)
v
RAYMOND HAWKSWELL
and
RACQ INSURANCE LIMITED
ABN 50 009 704 152
(defendants/respondents)

FILE NO/S:

Appeal No 13047 of 2009
DC No 88 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED ON:

23 April 2010

DELIVERED AT:

Brisbane

HEARING DATE:

20 April 2010

JUDGES:

Holmes and Muir JJA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal is dismissed with costs

CATCHWORDS:

TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – LIABILITY OF DRIVERS OF VEHICLES – GENERALLY – where respondent's truck ran into back of appellant's sedan – where appellant unsuccessfully sued respondent for damages for negligence – where respondent's truck hit appellant's sedan square on – where appellant's sedan had stopped in front of respondent's truck without warning twice prior to the collision – whether respondent should have appreciated heightened risk that appellant might continue past erratic behaviour – whether respondent should have adjusted driving to avoid a collision in circumstances of heightened risk – whether respondent negligent in failing to avoid a collision

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE'S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES – GENERALLY – where primary judge rejected appellant's account of the collision – where there were inconsistencies in evidence of respondent and eye-witness – where primary judge rejected some of respondent's evidence – whether primary judge erred in accepting the accounts of the respondent and eye-witness

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – WRONG PRINCIPLE – whether primary judge failed to properly apply the principles regarding the relationship between the "leading car" and the "following car"

Caterson v Commissioner for Railways (NSW) (1973) 128 CLR 99; [1973] HCA 12, applied
Clark v Hall and Anor [2006] QSC 274, cited
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited
McLean v Tedman (1984) 155 CLR 306; [1984] HCA 60, applied
Rains v Frost Enterprises Pty Ltd [1975] Qd R 287, cited
Sayers v Harlow Urban District Council [1958] 2 All ER 342, applied
Tebbit v Dunne & Anor[2009] QCA 86, cited

COUNSEL:

M Eliadis, with D Keane, for the appellant
M O'Sullivan for the respondents

SOLICITORS:

Shine Lawyers for the appellant
Cooper Grace Ward Lawyers for the respondents

1.   HOLMES JA:I agree with the reasons of Muir JA and the order he proposes.

1. MUIR JA:  Introduction

The 1980 Ford F100 truck driven by the respondent, pulling a float containing three thoroughbred racehorses, ran into the back of the Holden sedan driven by the appellant, between 5.30am and 6am on 30 April 2007, on Hursley Road, Toowoomba.  The appellant sued the respondent for damages…