This decision of his Honour Justice Jones is a reminder that the factual findings drive determinations of negligence and if not proved it does not enliven the duty of care.
The contest was between oncoming truck drivers who alternatively alleged each other had crossed over to the wrong side of the road. Quantum was not in dispute having being agreed at $425,000.00.
His Honour accepted the defendant’s version that the plaintiff’s speed was excessive. In reaching this conclusion his Honour relied on scuff marks on the road on the approach to a curve in the road before the accident, together with the observations of the investigating police officer and certain conversations:
 The plaintiff was quite frank about the level of his speed but I had difficulty accepting that at that speed he could negotiate the curve safely particularly with the presence of an oncoming vehicle. I had difficulty accepting that he had not previously passed a truck while negotiating the curve.
 I accept the evidence of Sergeant Anderson that the plaintiff spoke to him after the plaintiff’s discharge from hospital and in that interview the plaintiff did not claim that the other vehicle had crossed the centre line.
 I accept the evidence of the defendant and Mrs Driessing that they had conversations with the plaintiff during the period of his convalescence and that he made no suggestion to them that the defendant’s vehicle came onto its incorrect side. I accept also in that conversation the plaintiff stated that he was going too fast.
 As a result of my consideration of this evidence there is no support for the plaintiff’s contention that the defendant vehicle travelled on the incorrect side of the roadway. Had this been the circumstance, I would have expected the plaintiff to have said so to Sergeant Anderson. I would have expected also that when talking to the defendant and Mrs Driessing he would have raised the possibility that the defendant’s driving had at least contributed to his loss of control of his vehicle.
Brisbane Barrister – David Cormack