Wilson v Thorn - [2010] QDC 121

[2010] QDC 121

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE ROBIN QC

Appeal No 16 of 2009

ANGUS WILSON	Appellant
and
WESLEY SIMON THORN	Respondent

SOUTHPORT

..DATE 04/03/2010

ORDER

CATHWORDS

Motor Vehicle accident - claim and counterclaim for property damage in Magistrates Court - circumstances in which self-represented appellant's appeal against Magistrate's failure to find contributory negligence against the plaintiff was dismissed - appellant not present - appeal considered on the merits - appellant specifically granted liberty to apply (on conditions) to have orders set aside

HIS HONOUR: This is the appeal of Angus Wilson against a Southport Magistrate's decision in respect the claim of Wesley Simon Thorn and Mr Wilson's counterclaim. The two were driving their vehicles along the highway adjacent to the Broadwater when Thorn's collided with the vehicle immediately in front, a vehicle belonging to a member of the Goldspring family and apparently driven by another member of the Goldspring family. There followed, almost immediately thereafter, a much more serious collision between Mr Wilson's vehicle, which was following Mr Thorn's.

The Magistrate resolved conflict of evidence between the plaintiff, Thorn, and the defendant, Wilson by accepting the former's. On the issue of negligence, he dealt, first, with the issue of negligence of the defendant who was found to have failed to keep a proper lookout while travelling along the road, failed to appreciate that it was necessary for him to bring his vehicle to a stop behind the plaintiff's vehicle.

The Magistrate noted evidence of the defendant that he'd seen that the traffic in front was moving slowly: Commonsense indicates therefore that he would have to decrease his speed whether the plaintiff was on the road or not in order to bring the speed of his vehicle in line with the slowly moving traffic in front of him. He did not do that. He said that he merely watched the plaintiff's vehicle in front of him. He was travelling too fast in the circumstances in failing to keep a proper lookout and I find that he was negligent for that reason."
The account of Mr Wilson was that the plaintiff was travelling much too close to Goldspring's vehicle, indeed, so close that he never had sight of that vehicle. The plaintiff's vehicle was a sporty Mazda 6, not a large vehicle such as a truck or a large four-wheel drive, but, I suppose, as a matter of optics and geometry, it is possible, although it would be unlikely to be the situation for any great length of time, that a view of the leading Mitsubishi vehicle might have been completely cut off.

Mr Wilson's complaint against the plaintiff, which relates to both establishing negligence to support the counterclaim and establishing contributory negligence against the claim was that Thorn drove too close behind the Mitsubishi and then applied his brakes "suddenly and harshly", a favourite expression of Mr Wilson, it seems. The Magistrate was satisfied that: "At the end, the plaintiff did apply his brakes hard...to bring his vehicle up…

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 Wilson v Thorn

Details

AGLC: Wilson v Thorn [2010] QDC 121
Case: [2010] QDC 121
Decision Date: 04/03/2010

CaseChat Overview and Summary

In the case of Wilson v Thorn, Angus Wilson appealed against a decision of a Southport Magistrate in relation to a motor vehicle accident. Wesley Simon Thorn had been driving behind Wilson when Thorn collided with the vehicle in front, which was owned by a member of the Goldspring family. This collision resulted in a more serious collision between Thorn's vehicle and Wilson's vehicle. The Magistrate found Thorn not negligent in relation to Wilson but liable for damage to the Goldspring vehicle. The appeal was dismissed by Judge Robin QC on the grounds that the appeal had little chance of success and that Wilson had not shown a willingness to participate in the proceedings. The Court emphasised the importance of the credibility of witness evidence and the principle that a finding of fact by a trial Judge should not be set aside unless there is a failure to use or misuse of advantage or evidence that is inconsistent with facts incontrovertibly established by evidence or glaringly improbable. The Court found that the Magistrate had not failed to apply relevant principles of contributory negligence and that the appeal was not supported by new evidence. The appeal was dismissed with costs, and Wilson was granted liberty to apply to have the orders set aside on conditions that he be ready to argue the appeal on the merits when any application comes on, file and serve on the respondent all material intended to be relied on at the hearing of such application within three business days of filing, and ensure that the hearing occurs at least three business days after such filing and service.

Orders