Shaw v Menzies and Suncorp Metway Insurance Limited [2010] QSC 390

Issues:

Both liability and quantum were in issue. The facts involved the plaintiff travelling on a motorcycle and colliding with a truck executing a left turn. The plaintiff on his version was trying to accelerate to move in front  of the truck so as to avoid the collision on the side.

Liability:

Martin J

There was some disparity in the versions given at trial as compared to shortly after the accident to the police and loss adjuster and was not fatal to either party. In respect of the statement by the plaintiff to the police following the accident his Honour took into account:

[8] In the submissions from the second defendant it was said that the plaintiff gave two versions of what occurred – the version he gave to Constable Duff and the version he gave in court. I think it is important to bear in mind that the version given to the policeman was given very shortly after the plaintiff had been thrown from his motorcycle and hit another vehicle with such force that his helmet was shattered. He could not be expected to provide a calm and complete recitation of all that had occurred.

The defendant truck driver relied on Regulation 28(2) permitting a left hand turn from the middle lane a justification for the manoeuvre. His Honour stated this was not an absolute right and that the duty was to act reasonably in all the circumstances:

[21] I was referred to the decision of the Full Court in Rains v Frost Enterprises Pty Ltd [1975] Qd R 287 where Dunn J said (at 294):

“The essence of that relation [i.e. the relationship between a car being overtaken and the overtaking car] is that the follower is in a better position than the leader to observe, and thus is able to make a choice between creating a hazardous situation, as, by a failure to steer clear, and a safe situation, as by steering clear, or by stopping, if it is in doubt as to the leader’s intention.”

[22] However, as was pointed by Muir JA in Vos v Hawkswell (2010) 55 MVR 271 at [31], Dunn J was referring to a situation where there was a special relationship brought about by the two cars being “on a quite long straight stretch of road, in conditions of good visibility”. Justice Muir (with whom the other members of the Court agreed) said that Dunn J’s analysis does not suggest that the driver of the following car is inevitably liable should his vehicle collide with the vehicle in front. There is no such principle. Liability must be determined by reference to the particular facts of each case.

[23] The manoeuvre being undertaken by the first defendant in turning left was an inherently dangerous one, notwithstanding that it was authorised by law. A driver in such a situation must remain alert for other drivers who may not be complying with the rules of the road. This is a situation in which the well known statement in Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424 at 427 (per Barwick CJ, McTiernan, Kitto, Taylor and Owen JJ) should be borne in mind:

“[Road rules or regulations] are not definitive of the respective duties of the drivers of such vehicles to each other or in respect of themselves: nor is the breach of such regulations conclusive as to the performance of the duty owed to one another or in respect of themselves. The common-law duty to act reasonably in all the circumstances is paramount. The failure to take reasonable care in given circumstances is not necessarily answered by reliance upon the expected performance by the driver of the give way vehicle of his obligations under the regulations; for there is no general rule that in all circumstances a driver can rely upon the performance by others of their duties, whether derived from statutory sources or from the common law. Whether or not in particular circumstances it is reasonable to act upon the assumption that another will act in some particular way, as for example by performing his duty under a regulation, must remain a question of fact to be judged in all the particular circumstances of the case.

Therefore, it is, in our opinion, rightly said that the ‘“right hand rule” is not the be all and end all in relation to questions of civil responsibility’. The obligation of each driver of two vehicles approaching an intersection is to take reasonable care. What amounts to ‘reasonable care’ is, of course, a question of fact but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, should he find another vehicle approaching from his right or from his left in such a fashion that, if both vehicles continue, a collision may reasonably be expected.” (emphasis added)

His Honour concluded liability:

[24] As might be expected, the evidence of both Mr Shaw and Mr Menzies had elements of reconstruction and justification. It should not be expected that any person would retain a completely accurate memory of what occurred in these circumstances. It is the case, though, that on any version of the evidence Mr Shaw must have seen:

(a) the myriad of warning signs on the rear of the trailer; and

(b) if not all of the indicators on the trailer, then, at least, the indicator on the prime mover’s mudguard.

[25] I do not accept that the prime mover and trailer executed the manoeuvre described by the plaintiff. The path of travel could not have occurred in the space described by Mr Shaw due to, at least, the size and speed of the vehicles involved.

[26] The plaintiff was the author of his own misfortune. He failed to observe the obvious – the indicators and the slowing of the prime mover and trailer. He was obliged under the Regulation to give way to the vehicle turning left. In his attempt to overtake he miscalculated the distances and relative speeds and the collision was the result.

[27] The plaintiff, though, was not solely responsible. Mr Menzies had seen the plaintiff travelling behind him in the kerb lane. His long involvement with driving trucks let him know that, as a prime mover turns, its side mirrors reflect less and less of what is behind the cab until the angle becomes so acute that it only reflects an image of the trailer. Knowing that the plaintiff was in a vulnerable position, Mr Menzies failed to keep him under observation or, at least, take extra care in turning.

[28] This is a case in which it is appropriate to apportion responsibility for the accident. The lack of care by the plaintiff was far greater than that of the first defendant. Mr Shaw should bear the majority of blame for the collision.

[29] The nature of the task in assigning degrees of fault was described in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529 at 532-533 per Gibbs CJ, Mason, Wilson, Brennan and Deane JJ:

“The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd; Smith v McIntyre and Broadhurst v Millman and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.”

(emphasis added)

[30] It was the plaintiff who departed from the necessary standard of care to the greater extent. On the whole of the evidence as to the conduct of each party I find that the plaintiff was responsible for the accident to the extent of 70% and that the first defendant was 30% responsible.

Quantum:

Age Injuries Dominant ISV Uplift Occupation Past Loss Future Loss Gv-K
41 (m) Compressed comminuted fracture of the C5 vertebra, a sublaxation of the left C5/6 facet joint, a fracture of the mid shaft to the right ulna and a fracture to the right femur.$56,000.00 Item 86 ISV 35 No Glazier • 12 May 2006 – 1 July 2007 – $593 a week = $35,156.43• 2 July 2007 – 23 April 2008 – $660 a week = $27,708.57• 24 April 2008 – 22 October 2010 – $950 a week = $123,500.00$186,365.00 26 years -10 hours a week residual earning capacity.A reduction of the $950 figure to $650 a week to take into account residual earning capacity.  After discounting for contingencies the plaintiff’s future economic loss was  assessed at $424,710.00.

On appeal allowed

Past gratuitous care $47,302.75

Future gratuitous care $80,000.00

Importantly allowing commercial cost of care regardless that the
plaintiff’s family unit may incidentally benefit from it[1]



[1] Shaw v Menzies
& Anor [2011] QCA 197
paragraph [77] and following

 

Did not accept Ms Stephenson’s report because of the overlap in services provided to the household as a whole. Did not accept the threshold in s.59 was met. Nil allowance.

NB:

Appeal:

Shaw v Menzies & Anor [2011] QCA 197

reversed liability 75/25% in the plaintiff’s favour

Brisbane Barrister – David Cormack

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