February 5, 2019

Insurance

Brown v Daniels & Anor [2018] QSC 209

In February 2013, a collision occurred between two drivers just outside of Gladstone. One car (Defendant) was towing a horse float, and the other was a motorcycle (Plaintiff). The car approached a t-intersection where his lane terminated, the bike rider was travelling along the same road, approaching the intersection from the vehicles left. 

The bike rider alleged that the driver was negligent for failing to give way at the intersection as he was required to do so under the road rules. There was no dispute that the driver was required to give way to vehicles travelling on the roadway. The Plaintiff did not recall the accident.

conflicting EVIDENCE:

Both the drivers obtained reports from separate engineers concerning the accident. The Defendant objected to the engineering report obtained by the Plaintiff for breaching the requirements of Rule 429 of the UCPR and that some of the statements were not relevant expert opinion evidence. 

Rule 429 of the UCPR requires parties to, within a certain time period after the close of pleadings, disclose reports which they intend to rely upon at trial. This time limit was not adhered to by the Plaintiff nor the Defendant. The objection was rejected by the Court because the Defendant had the opportunity to respond to the Plaintiff’s engineers report in sufficient time. There was adequate time for both engineers to prepare to give evidence at the trial and there was no delay in the trial. Late reports of this nature may still be admitted into evidence in circumstances where a fair trial could still be held. 

The engineer's report itself was found worthy to those parts of the report which contained photographs and measurements of the accident. Opinions based on a person’s experience and expertise are appropriate subject to relevance. What is not admissible are opinions/conclusions drawn from physical evidence where there are various assumptions of what may or may not have occurred at a particular time. The Court was said to be in as good a position as an engineer to consider the evidence and draw its own conclusions as to the movements of the vehicles etc. 

WHO CAUSED THE COLLISION?

The court found that the driver had admitted to Police that he heard the impact as he was turning. This means that the car and the horse float were across the road at the time of impact and not entirely in/or parallel/straight on the street which the motorcycle was travelling on. The physical evidence was that the bike collided with the front left tyre of the horse float before impacting the left rear of the car. Such point of impact would not have occurred if the bike hit the back of the horse float. 

The Court accepted the submissions of the Defendants that a person has the right of way under the road rules, but this does not mean that the person with right of way can act unreasonably in the circumstances. Driving at a higher than a reasonably safe speed, which misleads another vehicle to act in a certain way, which would have been safe if the speeding car was travelling slower, results in negligence to that speeding vehicle. Reasonable care is required, and drivers with the right of way cannot act recklessly/with indifference to others around them. 

This submission was made on the basis that the bike rider was negligent by travelling at an excessive speed. Notwithstanding that the plaintiff said they could not remember the accident, he said that he was running in a new engine and would not have been travelling more than 100kms per hour (the speed limit) and most likely between 80 and 100kms per hour. This was supported by a witness called as to how to run in a new motorcycle engine. 

It was found that the driver of the vehicle simply failed to keep a proper lookout in circumstances where if he had, the bike would have been in the view of a person at the intersection when about 200 metres away, which would have been about 7 to 9 seconds if the Plaintiff was travelling at 80 to 100kms per hour. For the vehicle and it's passengers not to have seen the motorcycle would have required the Plaintiff be riding at an excessive speed, which was not. It was negligent for the Defendant driver to commence a turn with the Plaintiff approaching/in view. The Defendant driver was held entirely liable. 

IMPLICATIONS:

This decision reinforces that reasonable care and attention is required by all parties on a roadway. Mere reliance on the road rules as a complete defence against negligence will not stand up if a person acts in such a way that, in any event, caused or contributed to the collision. 

So-called expert accident reconstruction evidence in motor vehicle accident claims are of no considerable value when a party tries to establish a particular allegation as a fact based on assumptions of physical evidence. Photographs and measurements of the accident scene may be admissible and of relevance. Whether any such measurements are accepted after that as fact needs to be determined in conjunction with other evidence as a whole to vehicle positioning and impacts points etc. 

As a side note on quantum, the Plaintiff submitted a claim for travelling expenses in the past at a rate of 75c/km. The Court rejected the claim accepting the Defendant’s submission of a rate 50c/km.