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Wills v Bell

Wills v Bell

Case [2002] QCA 419 11 October 2002

Negligence

Volenti Non Fit Injuria

Compensatory Damages

Contributory Negligence

Insurer Subrogation

Tort Law

Insurance Law

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SUPREME COURT OF QUEENSLAND

CITATION:

Wills v Bell & Ors [2002] QCA 419

PARTIES:

TIMOTHY PATRICK WILLS
(plaintiff/respondent)
v
JAMES WILLIAM BELL
(defendant)
VACC INSURANCE CO LIMITED
ACN 000 327 855
(defendant by election/appellant)
ERINDELL PTY LTD
ACN 055 118 637
(first third party)
JOHN FRANCIS STONE
(second third party)

FILE NO/S:

Appeal No 82 of 2002
SC No 715 of 1995

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

11 October 2002

DELIVERED AT:

Brisbane

HEARING DATE:

20 May 2002

JUDGES:

McMurdo P, Mackenzie and White JJ
Separate reasons for judgment of each member of the Court, Mackenzie and White JJ concurring as to the orders made, McMurdo P dissenting in part

ORDERS:

Allow the appeal to the extent of ordering that the respondent’s damages be reduced by 70 per cent (which includes 20 per cent for not wearing a seat belt) of the damages assessed below before apportionment.1.

Give leave to amend the cross-appeal and allow the cross-appeal
(i) by varying the amount of administrative charges not reduced by virtue of contributory negligence;
(ii) to include the management fees in respect of the fund awarded to the respondent to be calculated as the difference between Perpetual Trustees Queensland Limited’s administration fee and the fee charged on the fund by the Public Trustee. 2.

The respondent pay the appellant’s costs of the appeal.3.

The appellant pay the respondent’s costs of the cross-appeal.4.

Grant the appellant/cross-respondent an indemnity certificate under s 15 of Appeal Costs Fund Act 1973 (Qld) on the first ground of the cross-appeal.5.

CATCHWORDS:

TORTS – NEGLIGENCE – STATUTES, REGULATIONS, ETC – ADMISSIBILITY AND EFFECT IN ACTIONS FOR NEGLIGENCE – RELATING TO VEHICLES AND TRAFFIC – PARTICULAR STATUTES, REGULATIONS, ETC – claim by injured passenger – Motor Vehicles Insurance Act (Qld) 1936 – Motor Vehicles Insurance Regulation (Qld) 1936

TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – PARTICULAR CASES – ROAD ACCIDENT CASES – where passenger has been drinking alcohol in company of driver – whether defences apply

TORTS – NEGLIGENCE – MISCELLANEOUS DEFENCES ILLEGALITY OF PLAINTIFF’S ACTIVITY – where injured passenger permits driver affected by alcohol to drive vehicle – whether sufficient to establish a joint illegal enterprise

TORTS – NEGLIGENCE – INJURIES TO PASSENGERS – DEFENCES OF VOLENTI NON FIT INJURIA, NO BREACH OF DUTY, AND CONTRIBUTORY NEGLIGENCE – WHERE AFFECTED BY ALCOHOL – whether defences apply where both passenger and driver have consumed alcohol

TORTS – NEGLIGENCE – INJURIES TO PASSENGERS – DEFENCES OF VOLENTI NON FIT INJURIA, NO BREACH OF DUTY, AND CONTRIBUTORY NEGLIGENCE – FAILURE TO WEAR SEAT BELT – reduction of damages for failure to wear a seat belt

PROCEDURE – COSTS – CERTIFICATE FOR COSTS: COSTS ON OTHER THAN INFERIOR COURT SCALE – CERTIFICATE FOR COSTS OR “OTHER” ORDER – CIRCUMSTANCES WHEN GRANTED – costs under Appeal Costs Fund Act 1973 (Qld)

INSURANCE – THIRD-PARTY LIABILITY INSURANCE – MOTOR VEHICLES – COMPULSORY INSURANCE LEGISLATION – OTHER CASES – QUEENSLAND…

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 Wills v Bell

Details

AGLC: Wills v Bell [2002] QCA 419
Case: [2002] QCA 419
Decision Date: 11 October 2002

CaseChat Overview and Summary

Wills v Bell is a case involving an injured passenger who sought damages for injuries sustained in a car accident caused by the driver's negligence. The Motor Vehicles Insurance Act (Qld) 1936 and Motor Vehicles Insurance Regulation (Qld) 1936 were relevant to the dispute, particularly in relation to the admissibility and effect of these statutes and regulations in actions for negligence. The injured passenger, who was also a passenger in the vehicle, was seeking compensation for injuries resulting from the accident, which was caused by the driver's negligence while under the influence of alcohol. The driver had consumed alcohol in the company of the injured passenger, who had also been drinking. The court had to consider various defences, including volenti non fit injuria, no breach of duty, contributory negligence, and the legality of the plaintiff's activity in permitting the driver to drive under the influence of alcohol.

The court had to decide several legal issues, including whether the injured passenger's defences of volenti non fit injuria, no breach of duty, and contributory negligence were applicable, given that both the passenger and driver had consumed alcohol. The court also had to consider whether the injured passenger's permission for the driver to drive under the influence of alcohol constituted a joint illegal enterprise, which could have affected the passenger's claim for damages. Additionally, the court had to examine the effect of the injured passenger's failure to wear a seat belt on the assessment of damages. The court had to determine the admissibility and effect of the Motor Vehicles Insurance Act (Qld) 1936 and Motor Vehicles Insurance Regulation (Qld) 1936 in the context of the injured passenger's claim for damages. Finally, the court had to decide whether the insurer of the vehicle was entitled to recover from the owner of the vehicle, who was also the injured passenger, in the event of a successful claim for damages.

The court held that the injured passenger's defences of volenti non fit injuria, no breach of duty, and contributory negligence were applicable, given that both the passenger and driver had consumed alcohol. However, the court found that the injured passenger's permission for the driver to drive under the influence of alcohol did not constitute a joint illegal enterprise. The court also held that the injured passenger's failure to wear a seat belt was a relevant factor in the assessment of damages, and the injured passenger's damages were reduced by 70 per cent, including 20 per cent for not wearing a seat belt. The court found that the insurer of the vehicle was not entitled to recover from the owner of the vehicle, who was also the injured passenger, in the event of a successful claim for damages.

The court ordered that the injured passenger's damages be reduced by 70 per cent, including 20 per cent for not wearing a seat belt. The court allowed the cross-appeal and varied the amount of administrative charges not reduced by virtue of contributory negligence, to include the management fees in respect of the fund awarded to the injured passenger. The court also ordered that the injured passenger pay the driver's costs of the appeal, while the driver paid the injured passenger's costs of the cross-appeal. Finally, the court granted the driver an indemnity certificate under s 15 of Appeal Costs Fund Act 1973 (Qld) on the first ground of the cross-appeal.

Orders

Orders of the court

Allow the appeal to the extent of ordering that the respondent’s damages be reduced by 70 per cent (which includes 20 per cent for not wearing a seat belt) of the damages assessed below before apportionment.1.

Give leave to amend the cross-appeal and allow the cross-appeal

(i) by varying the amount of administrative charges not reduced by virtue of contributory negligence;

(ii) to include the management fees in respect of the fund awarded to the respondent to be calculated as the difference between Perpetual Trustees Queensland Limited’s administration fee and the fee charged on the fund by the Public Trustee. 2.

The respondent pay the appellant’s costs of the appeal.3.

The appellant pay the respondent’s costs of the cross-appeal.4.

Grant the appellant/cross-respondent an indemnity certificate under s 15 of Appeal Costs Fund Act 1973 (Qld) on the first ground of the cross-appeal.5.

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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Citations

AGLC Citation

Wills v Bell [2002] QCA 419

Most Recent Citation

Willett v Futcher [2004] QCA 30

Cases citing this decision · 5 of 5 shown

Bevan v Coolahan
[2018] NSWDC 410

…gins (2006) 46 MVR 514 Watson v Meyer [2013] NSWCA 243 Wells v Council of City of Orange (No 2) [2017] NSWSC 510 Wills v Bell & Ors [2002] QCA 419 Woodcroft-Brown v Timbercorp Securities Ltd (in liq) [2011] VSC 427 Yates v Jones (1990) Aust Torts Reports 81-009 Yip v Zreika (2001) 35 MVR 305 Texts Cited: Australi…
Smith by His Next Friend Ronald Kevin Smith v Hanrahan
[2006] WADC 20

…tish Columbia (1988) 53 DLR (4th) 606 Todorovic v Waller (1981) 56 ALJR 59 Treonne Wholesale Meats Pty Ltd v Shaheen (1988) 12 NSWLR 522 Wills v Bell [2002] QCA 419…
Willett v Futcher
[2004] QCA 30

…Act 1973 (Qld), s 22, s 23, s 24 Nominal Defendant v Gardikiotis (1996) 186 CLR 49, applied Todorovic v Waller (1981) 150 CLR 402, cited Wills v Bell [2002] QCA 419; CA No 82 of 2002, 11 October 2002, cited COUNSEL: T Matthews for the appellant D B Fraser QC, with M P Kent, for the respondent D C Rangiah for the…
McChesney v Singh
[2003] QSC 83 Para 1

…ort time after White J’s decision in Willett & Anor v Futcher [2003] QSC 36. In that decision she convincingly demonstrated that Wills v Bell & Ors [2002] QCA 419 ought not be regarded as consistent with existing expressions of principle in the High Court including those in Nominal Defendant v Gardikiotis (1996)…
Willett v Futcher
[2003] QSC 36 Para 1

…It is necessary to say something about Wills v Bell [2002] QCA 419. A cross-appeal was made, inter alia , against the refusal by Mullins J in a decision of 14 December 2001 (no. 715 of 1995) to include in the assessment of damages the cost of selecting and managing investments in respect of the damages fund award…

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Cases cited in this decision · 12 of 12 shown

South Tweed Heads Rugby League Football Club Ltd v Cole
[2002] NSWCA 205 Para 1

…el for the Defendant by Election provided the court with the judgment in South Tweed Heads Rugby League Club Limited v Rosellie Jonnell Cole and Anor [2002] NSWCA 205 (Heydon, Santow JJA and Ipp AJA). The first instance decision, named Cole v Lawrence , was discussed in her Honour’s reasons. The appellate decision…
Goode v Thompson
[2001] QSC 287

…ed Goode v Thompson & Suncorp General Insurance Limited [2001] QSC 287, unreported decision of Ambrose J of 2 July 2001, considered Insurance Commissioner v Joyce (1948) 77 CLR 39, applied Jackson v Harrison (1978) 138 CLR 438, considered Jansons v Public Curator [1968] Qd R 40, referred to McPherson v Whitfield…
Nominal Defendant v Gardikiotis
[1996] HCA 53 Para 1

…foreseeable and recoverable: Campbell v Nangle ;[26] The Nominal Defendant v Gardikiotis ;[27] Mullins v Duck .[28] [26](1985) 40 SASR 161, 192. [27](1996) 186 CLR 49. [28](1988) 2 Qd R 674.…
Gala v Preston
[1991] HCA 18 Para 1

…damages in negligence when the two had jointly stolen the vehicle and were unlawfully using it at the time of the accident. [2](1986) 162 CLR 376. [3](1991) 172 CLR 243.…
Cook v Cook
[1986] HCA 73 Para 1

…ness could not recover damages in negligence when the two had jointly stolen the vehicle and were unlawfully using it at the time of the accident. [2](1986) 162 CLR 376. [3](1991) 172 CLR 243.…
San Sebastian Pty Ltd v The Minister
[1986] HCA 68 Para 1

…which has its origin in Australia in Insurance Commissioner v Joyce (1948) 77 CLR 39 and its most recent application in the High Court in Cook v Cook (1986) 162 CLR 340 was not dealt with by her Honour separately from a consideration of the defence of joint illegal enterprise. The approach in Joyce was confirmed in R…
Jackson v Harrison
[1978] HCA 17

…nsurance Commissioner v Joyce (1948) 77 CLR 39, applied Jackson v Harrison (1978) 138 CLR 438, considered Jansons v Public Curator [1968] Qd R 40, referred to McPherson v Whitfield [1996] 1 Qd R 474, applied Mullins v Duck [1988] 2 Qd R 674, referred to Nettleship v Weston [1971] 2 QB 691, referred to Nominal Defendant v Ga…
Smith v Jenkins
[1970] HCA 2

…ch might otherwise arise from the relationship with subsists between the parties, especially if it be accepted that the decision in Smith v Jenkins (1970) 119 CLR 397 does not rest on public policy.”…
Roggenkamp v Bennett
[1950] HCA 23 Para 1

…appreciation of the risks involved in allowing the drunken defendant to take over the driving shortly before the accident. [13] Roggenkamp v Bennett (1950) 80 CLR 292, 300; McPherson v Whitfield [1996] 1 Qd R 474.…
Insurance Commissioner v Joyce
[1948] HCA 17 Para 1

…of liquor. The defendant driver who had probably caused the accident was not found until two hours later when he was observed to be very drunk. [15](1948) 77 CLR 39.…
Progress & Properties Ltd v Craft
[1976] HCA 59

…Defendant v Gardikiotis [1995-1996] 186 CLR 49, applied Progress and Properties Ltd v Craft (1976) 135 CLR 651, considered South Tweed Heads Rugby League Club Limited v Rosellie Jonnell Cole and Anor [2002] NSWCA 205, referred to State Government Insurance Office (Qld) v Wilmott [1984] 1 Qd R 639, considered Redford v Ward (1990) Aust Torts…
[1971] 2 QB 691
[1971] 2 QB 691 Para 1

…ill be displaced. In Cook, Mason, Wilson, Deane and Dawson JJ at 387 referred with approval to the view expressed by Salmon LJ in Nettleship v Weston [1971] 2 QB 691 at 704 that to replace the ordinary duty of care:…

Legislation cited in this decision · 6

Appeal Costs Fund Act 1973 (Qld)
15 2 mentions (from Para 1)
Motor Vehicles Insurance Act of 1936 (1 Edw Viii No. 31) (Qld)
2 2 mentions (from Para 1)
Traffic Act 1949 (Qld)
16 2 mentions (from Para 1)
Criminal Code Act 1899 (Qld)
328A(2)(a) 1 mention
Law Reform Act 1995 (Qld)
10(1) 1 mention (from Para 1)
Motor Vehicle Insurance Act 1936 (Qld)
1 mention (from Para 1)

CITATION:	Wills v Bell & Ors [2002] QCA 419
PARTIES:	TIMOTHY PATRICK WILLS (plaintiff/respondent) v JAMES WILLIAM BELL (defendant) VACC INSURANCE CO LIMITED ACN 000 327 855 (defendant by election/appellant) ERINDELL PTY LTD ACN 055 118 637 (first third party) JOHN FRANCIS STONE (second third party)
FILE NO/S:	Appeal No 82 of 2002 SC No 715 of 1995
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	11 October 2002
DELIVERED AT:	Brisbane
HEARING DATE:	20 May 2002
JUDGES:	McMurdo P, Mackenzie and White JJ Separate reasons for judgment of each member of the Court, Mackenzie and White JJ concurring as to the orders made, McMurdo P dissenting in part
ORDERS:	Allow the appeal to the extent of ordering that the respondent’s damages be reduced by 70 per cent (which includes 20 per cent for not wearing a seat belt) of the damages assessed below before apportionment.1. Give leave to amend the cross-appeal and allow the cross-appeal (i) by varying the amount of administrative charges not reduced by virtue of contributory negligence; (ii) to include the management fees in respect of the fund awarded to the respondent to be calculated as the difference between Perpetual Trustees Queensland Limited’s administration fee and the fee charged on the fund by the Public Trustee. 2. The respondent pay the appellant’s costs of the appeal.3. The appellant pay the respondent’s costs of the cross-appeal.4. *Grant the appellant/cross-respondent an indemnity certificate under s 15 of Appeal Costs Fund Act* 1973 (Qld) on the first ground of the cross-appeal.**5.
CATCHWORDS:	TORTS – NEGLIGENCE – STATUTES, REGULATIONS, ETC – ADMISSIBILITY AND EFFECT IN ACTIONS FOR NEGLIGENCE – RELATING TO VEHICLES AND TRAFFIC – PARTICULAR STATUTES, REGULATIONS, ETC – claim by injured passenger – Motor Vehicles Insurance Act (Qld) 1936 – Motor Vehicles Insurance Regulation (Qld) 1936 TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – PARTICULAR CASES – ROAD ACCIDENT CASES – where passenger has been drinking alcohol in company of driver – whether defences apply TORTS – NEGLIGENCE – MISCELLANEOUS DEFENCES ILLEGALITY OF PLAINTIFF’S ACTIVITY – where injured passenger permits driver affected by alcohol to drive vehicle – whether sufficient to establish a joint illegal enterprise TORTS – NEGLIGENCE – INJURIES TO PASSENGERS – DEFENCES OF VOLENTI NON FIT INJURIA, NO BREACH OF DUTY, AND CONTRIBUTORY NEGLIGENCE – WHERE AFFECTED BY ALCOHOL – whether defences apply where both passenger and driver have consumed alcohol TORTS – NEGLIGENCE – INJURIES TO PASSENGERS – DEFENCES OF VOLENTI NON FIT INJURIA, NO BREACH OF DUTY, AND CONTRIBUTORY NEGLIGENCE – FAILURE TO WEAR SEAT BELT – reduction of damages for failure to wear a seat belt PROCEDURE – COSTS – CERTIFICATE FOR COSTS: COSTS ON OTHER THAN INFERIOR COURT SCALE – CERTIFICATE FOR COSTS OR “OTHER” ORDER – CIRCUMSTANCES WHEN GRANTED – costs under Appeal Costs Fund Act 1973 (Qld) INSURANCE – THIRD-PARTY LIABILITY INSURANCE – MOTOR VEHICLES – COMPULSORY INSURANCE LEGISLATION – OTHER CASES – QUEENSLAND…