Wynne v Davey - [2015] QSC 200

SUPREME COURT OF QUEENSLAND

CITATION:

Wynne v Davey & Anor [2015] QSC 200

PARTIES:

MARK DAVID WYNNE

(plaintiff)

v
JOHNATHAN ALEXANDER DAVEY

(first defendant )
and
NRMA INSURANCE ACN 000 016 722

(second defendant)

FILE NO/S:

No 12089 of 2014

DIVISION:

Trial

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 July 2015

DELIVERED AT:

Brisbane

HEARING DATES:

17, 18, 19, 20 March 2015; further written submissions 2 April 2015 and 16 April 2015

JUDGE:

Burns J

ORDER:
Judgment for the plaintiff on the issue of liability apportioned 85%:15% in the plaintiff’s favour

CATCHWORDS:

TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – LIABILITY OF DRIVERS OF VEHICLES – GENERALLY – where the first defendant had stopped his vehicle to conduct a manoeuvre across a roadway – where the plaintiff was a motorcyclist approaching the first defendant’s stationary vehicle – where the plaintiff had seen the first defendant’s vehicle with right indicator activated – where the plaintiff’s vision became obscured – where the plaintiff believed the first defendant’s vehicle would give way and allow the plaintiff to pass – where the first defendant turned his vehicle across the southbound lane and into the northbound lane – where the plaintiff collided with the front driver’s side door of the first defendant’s vehicle – where the plaintiff suffered personal injuries – where the quantum of damages is agreed – where the first defendant claims that the plaintiff attempted to overtake the first defendant’s vehicle – whether the first defendant’s vehicle was off the road or in the southbound lane when it began the manoeuvre – whether the first defendant attempted a U-turn or a right hand turn across the centre of the road – whether the first defendant’s vehicle turned across centre double white lines or a centre single white line – whether the collision occurred in the southbound or northbound lane – whether the first defendant’s manoeuvre was permitted under the Transport Operations (Road Use Management—Road Rules) Regulation 2009 – whether the defendants are liable for the plaintiff’s personal injuries

TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – PARTICULAR CASES – ROAD ACCIDENT CASES – where the plaintiff saw that the first defendant’s vehicle intended to turn right – where the plaintiff assumed it was safe to pass the first defendant – where the plaintiff’s vision became obscured – where the first defendant’s vehicle turned across the southbound lane 20 to 30 metres ahead of the plaintiff – where the plaintiff failed to come to a halt to avoid a collision – whether the plaintiff was travelling at an excessive speed – whether the plaintiff sufficiently reduced his speed upon sighting the first defendant’s vehicle – whether the plaintiff should have appreciated the heightened risk that the first defendant’s vehicle may turn across the plaintiff’s path – whether the plaintiff’s failure to sufficiently slow down contributed to his personal injuries

Civil Liability Act 2003 (Qld), s 23

Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld), reg 37, reg 38, reg…

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 Wynne v Davey

Details

AGLC: Wynne v Davey [2015] QSC 200
Case: [2015] QSC 200
Decision Date: 17 July 2015

CaseChat Overview and Summary

The case of Wynne v Davey involved a dispute between the plaintiff, Wynne, and two defendants, Davey and another. Wynne, a motorcyclist, collided with the first defendant’s vehicle, which had turned across the southbound lane into the northbound lane, resulting in Wynne suffering personal injuries. Wynne sued for damages, and the defendants denied liability. Wynne asserted that the first defendant’s manoeuvre was negligent and the defendants were liable for his injuries. The defendants countered that Wynne had failed to sufficiently reduce his speed and that his contributory negligence should be considered.

The court had to determine several key legal issues. The first was whether the first defendant’s vehicle was off the road or in the southbound lane when it began the manoeuvre. The second issue was whether the manoeuvre constituted a U-turn or a right-hand turn across the centre of the road. Additionally, the court had to assess whether the manoeuvre was permitted under the relevant road regulations. Another significant issue was whether Wynne was contributorily negligent in failing to reduce his speed and avoid the collision.

The court ruled that the first defendant’s vehicle was in the southbound lane when it began the manoeuvre, and it was a right-hand turn across the centre of the road, which was not permitted under the Transport Operations (Road Use Management—Road Rules) Regulation 2009. The court found that the first defendant was negligent in making the turn without proper regard for the safety of other road users. Regarding contributory negligence, the court concluded that Wynne, despite seeing the right indicator, was not negligent in failing to come to a halt because he reasonably believed the first defendant’s vehicle would give way. The court apportioned liability 85% to the first defendant and 15% to Wynne.

The court ordered judgment in favour of Wynne on the issue of liability, apportioning 85% to Wynne and 15% to him for contributory negligence. The quantum of damages was agreed upon, and the court entered judgment accordingly.

Orders

Orders of the court

Judgment for the plaintiff on the issue of liability apportioned 85%:15% in the plaintiff’s favour

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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CITATION:	Wynne v Davey & Anor [2015] QSC 200
PARTIES:	MARK DAVID WYNNE (plaintiff) v JOHNATHAN ALEXANDER DAVEY (first defendant ) and NRMA INSURANCE ACN 000 016 722 (second defendant)
FILE NO/S:	No 12089 of 2014
DIVISION:	Trial
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	17 July 2015
DELIVERED AT:	Brisbane
HEARING DATES:	17, 18, 19, 20 March 2015; further written submissions 2 April 2015 and 16 April 2015
JUDGE:	Burns J
ORDER:	Judgment for the plaintiff on the issue of liability apportioned 85%:15% in the plaintiff’s favour
CATCHWORDS:	TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – LIABILITY OF DRIVERS OF VEHICLES – GENERALLY – where the first defendant had stopped his vehicle to conduct a manoeuvre across a roadway – where the plaintiff was a motorcyclist approaching the first defendant’s stationary vehicle – where the plaintiff had seen the first defendant’s vehicle with right indicator activated – where the plaintiff’s vision became obscured – where the plaintiff believed the first defendant’s vehicle would give way and allow the plaintiff to pass – where the first defendant turned his vehicle across the southbound lane and into the northbound lane – where the plaintiff collided with the front driver’s side door of the first defendant’s vehicle – where the plaintiff suffered personal injuries – where the quantum of damages is agreed – where the first defendant claims that the plaintiff attempted to overtake the first defendant’s vehicle – whether the first defendant’s vehicle was off the road or in the southbound lane when it began the manoeuvre – whether the first defendant attempted a U-turn or a right hand turn across the centre of the road – whether the first defendant’s vehicle turned across centre double white lines or a centre single white line – whether the collision occurred in the southbound or northbound lane – whether the first defendant’s manoeuvre was permitted under the Transport Operations (Road Use Management—Road Rules) Regulation 2009 – whether the defendants are liable for the plaintiff’s personal injuries TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – PARTICULAR CASES – ROAD ACCIDENT CASES – where the plaintiff saw that the first defendant’s vehicle intended to turn right – where the plaintiff assumed it was safe to pass the first defendant – where the plaintiff’s vision became obscured – where the first defendant’s vehicle turned across the southbound lane 20 to 30 metres ahead of the plaintiff – where the plaintiff failed to come to a halt to avoid a collision – whether the plaintiff was travelling at an excessive speed – whether the plaintiff sufficiently reduced his speed upon sighting the first defendant’s vehicle – whether the plaintiff should have appreciated the heightened risk that the first defendant’s vehicle may turn across the plaintiff’s path – whether the plaintiff’s failure to sufficiently slow down contributed to his personal injuries Civil Liability Act 2003 (Qld), s 23 Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld), reg 37, reg 38, reg…