Wilson v Tomley - [2004] QCA 332

SUPREME COURT OF QUEENSLAND

CITATION:

Wilson v Tomley & Anor [2004] QCA 332

PARTIES:

ROBERT NOEL WILSON
(plaintiff/appellant)
v
DENNIS TOMLEY
(first defendant/first respondent)
ALLIANZ AUSTRALIA INSURANCE LIMITED
ACN 000 122 850

(second defendant/second respondent)

FILE NO/S:

Appeal No 3263 of 2004

DC No 754 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

17 September 2004

DELIVERED AT:

Brisbane

HEARING DATE:

10 August 2004

JUDGES:

Williams JA and Helman and Dutney JJ

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs

CATCHWORDS:

TORTS – NEGLIGENCE – APPORTIONMENT OF RESPONSIBILITY AND DAMAGES – PRINCIPLES AND MODE OF APPORTIONMENT – Road Accident – Whether the trial judge erred in his finding of facts that led to an assessment of contributory negligence

TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – ACTIONS FOR NEGLIGENCE – APPORTIONMENT OF DAMAGES – INTERSECTION AND JUNCTION ACCIDENTS – Whether the trial judge erred in his finding of facts that led to an assessment of contributory negligence

COUNSEL:

Mr J W Lee for the appellant

Mr R J Lynch for the respondents

SOLICITORS:

Keith Scott & Associates for the appellant

McInnes Wilson for the respondents

WILLIAMS JA:I have had the advantage of reading the reasons for judgment of Helman J and I agree with all that he has said therein. The appeal should be dismissed with costs.

HELMAN J: The plaintiff is dissatisfied with the results of the trial of his claim, which took place on 15 and 16 March 2004 in the District Court at Brisbane. The claim arose from a collision between a motor car the plaintiff was driving and a utility truck driven by the first defendant and insured by the second defendant. The plaintiff claimed damages for negligence. He suffered personal injuries as a result of the collision, the damages for which the learned trial judge assessed at $128,805.93. His Honour found the first defendant had been negligent. Judgment was, however, entered on 16 March 2004 for the plaintiff against the second defendant for only $32,201.48 because his Honour found that the plaintiff had been guilty of contributory negligence he assessed at 75 per cent. It is his Honour’s finding of facts that led to that assessment of contributory negligence that brings the plaintiff to this court. It is asserted on his behalf that that assessment should be set aside and judgment entered for the plaintiff for the $128,805.93; but no challenge was made on behalf of the plaintiff to the apportionment if this court is not persuaded that his Honour’s finding of the facts in question should not be set aside.

Before his Honour there were three witnesses to the collision: the plaintiff, the first defendant, and another driver called for the defendants, Mr Damian Devine. They each gave an account of the collision and the events immediately preceding and after it. It occurred on the morning of 31 May 2001…

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 Tomley

Details

AGLC: Wilson v Tomley [2004] QCA 332
Case: [2004] QCA 332
Decision Date: 17 September 2004

CaseChat Overview and Summary

The case of Wilson v Tomley involved the plaintiff, Wilson, who was injured in a road accident at an intersection. The defendant, Tomley, was also involved in the accident and was found to be negligent. Wilson sought damages for his injuries, which Tomley disputed in part on the basis of Wilson's contributory negligence. The dispute was brought before the court to determine the apportionment of responsibility and damages.

The legal issues before the court were whether the trial judge had erred in his findings of fact that led to the assessment of contributory negligence on the part of Wilson, and if so, whether this affected the apportionment of damages. The court had to consider the principles and mode of apportionment of responsibility in cases of intersection and junction accidents, and whether the trial judge's findings were consistent with those principles.

The court found that the trial judge had not erred in his assessment of contributory negligence. The reasoning was that the judge had considered all relevant evidence and circumstances surrounding the accident, including the actions of both parties, and had applied the appropriate legal standards. The court upheld the trial judge's findings and the resulting apportionment of responsibility and damages. As such, the appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	Wilson v Tomley & Anor [2004] QCA 332
PARTIES:	ROBERT NOEL WILSON (plaintiff/appellant) v DENNIS TOMLEY (first defendant/first respondent) ALLIANZ AUSTRALIA INSURANCE LIMITED ACN 000 122 850 (second defendant/second respondent)
FILE NO/S:	Appeal No 3263 of 2004 DC No 754 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	17 September 2004
DELIVERED AT:	Brisbane
HEARING DATE:	10 August 2004
JUDGES:	Williams JA and Helman and Dutney JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed with costs
CATCHWORDS:	TORTS – NEGLIGENCE – APPORTIONMENT OF RESPONSIBILITY AND DAMAGES – PRINCIPLES AND MODE OF APPORTIONMENT – Road Accident – Whether the trial judge erred in his finding of facts that led to an assessment of contributory negligence TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – ACTIONS FOR NEGLIGENCE – APPORTIONMENT OF DAMAGES – INTERSECTION AND JUNCTION ACCIDENTS – Whether the trial judge erred in his finding of facts that led to an assessment of contributory negligence
COUNSEL:	Mr J W Lee for the appellant Mr R J Lynch for the respondents
SOLICITORS:	Keith Scott & Associates for the appellant McInnes Wilson for the respondents