Williams v Chesterman

[1992] QCA 198

[1992] QCA 198

COURT OF APPEAL

MACROSSAN CJ
DAVIES JA
PINCUS JA

CA No 74 of 1992

BART WILLIAMS  Respondent (Plaintiff)

and

BRIAN ARTHUR CHESTERMAN  (Defendant)

and

FAI GENERAL INSURANCE COMPANY

LIMITED  Appellant (Defendant by Election)

BRISBANE

DATE 31/07/92

JUDGMENT

310792

PINCUS JA: This is an appeal against a judgment of the District Court in a motor accident case. The appellant is the defendant by election which complains of a finding of negligence given in favour of the respondent plaintiff.  The appellant submits that there should have been no finding of negligence against the defendant but did not, in the end, appear to press that point strongly.  The substantial argument was, perhaps, that the Judge was wrong in apportioning liability equally between the drivers of the two vehicles involved.

The accident in question happened in daylight at the intersection of Kedron Park Road with Felix Street, Wooloowin, Brisbane.  The former is a major road and the latter a minor one.  The two streets intersect, it appears from Exhibit 5, at an angle of 64 degrees.  The respondent was, shortly before the collision, travelling south along Kedron Park Road and he came into collision with a motor car, on the findings, at about the middle of Felix Street in the course of a right-hand turn on his motorcycle into that street.  The motor car was being driven by the defendant, a Mr Chesterman, who was not a party to the appeal.

According to the defendant’s case, the collision occurred some substantial distance into Felix Street, the respondent's motorcycle being then well on the wrong side of the road, but that view of the matter was rejected by the trial Judge.  His Honour's views were as follows.  The Judge found that the corner was a blind one in that there was a two-storey building at it, built right up to the building alignment; there was very little mutual visibility; the corner, His Honour thought, was a dangerous one, requiring a considerable amount of vigilance on the part of each motorist.

The defendant and the other occupants of his car said that the respondent cut the corner very sharply at a considerable speed and lost control of his motorcycle, producing a collision, as I have said, well back from the intersection.  The Judge described the respondent's manoeuvre as almost suicidal, on the defendant's case, which he regarded as somewhat improbable.  The respondent's evidence was that he turned to the right at a low rate of speed.

The Judge mentioned that the defendant thought his speed was about 20 kilometres per hour when he first saw the respondent and that the speed of the car was less than 10 kilometres per hour at impact.  The Judge pointed out that the defendant's wife initially said that the car was travelling at about 60 kilometres per hour, later 40 kilometres per hour, when she saw the motorcycle cut the corner; the car must then have been very close to this blind corner.  Mrs Chesterman said the…