Vos v Hawkswell

Case [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…

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Details
AGLC
Vos v Hawkswell [2010] QCA 92
Case
[2010] QCA 92
Decision Date

CaseChat Overview and Summary

The case of Vos v Hawkswell involved a dispute between the appellant, Vos, and the respondent, Hawkswell, regarding a road accident where Hawkswell's truck collided with the back of Vos's sedan. Vos sought damages for negligence, claiming that Hawkswell should have adjusted his driving to avoid the collision, given the heightened risk posed by Vos's erratic driving. The primary judge dismissed Vos's action, finding that Hawkswell was not negligent. Vos appealed this decision.

The court was required to determine whether Hawkswell was negligent in failing to avoid the collision, given that Vos had stopped suddenly and without warning on two occasions prior to the collision. The court also had to consider whether the primary judge erred in assessing the credibility of the evidence and whether the primary judge correctly applied the principles regarding the relationship between the leading and following cars.

The court found that the primary judge's decision was well-reasoned and based on credible evidence. The court upheld the primary judge's findings that Vos had stopped his vehicle suddenly and without warning, and that Hawkswell could not have reasonably anticipated further erratic behaviour from Vos. The court held that Hawkswell was not negligent in failing to avoid the collision under the circumstances. The court also found that the primary judge correctly assessed the credibility of the evidence and applied the relevant legal principles.

The appeal was dismissed, and the decision of the primary judge was upheld. The court ordered that the appeal be dismissed with costs.

Orders

Orders of the court

The appeal is dismissed with costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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