Up & coming Bronco’s player’s catastrophic injury claim reduced for contributory negligence

Berwick v Clark & Anor [2018] QSC 116

Applegarth 

In August 2012 the plaintiff suffered catastrophic injuries including a severe head injury resulting in permanent disability, when his vehicle, a Mazda 6, collided with the first defendant’s vehicle, a Mazda 2, crossing the plaintiff’s lane. The plaintiff could not give evidence because of the cognitive effects of the head injury.

The plaintiff alleged that the first defendant was negligent in failing to keep a proper lookout and failing to give way to the plaintiff’s vehicle. The second defendant, the compulsory insurer for the first defendant, alleged that the plaintiff’s vehicle was not observable without illuminated headlights and that it was travelling at excessive speed.

Determining the matter, the issues for Applegarth J were:

  • Whether the plaintiff’s vehicle headlights were on;
  • The speed and direction of the vehicles before the collision

The plaintiff’s vehicle headlights

After discussing the evidence, his Honour continued to determine whether the plaintiff’s vehicle headlights were on. His Honour was persuaded by the evidence of Mr Cullen and Ms Iose. The second defendant alleged that headlights were off and that the light switch was found in the off position in the plaintiff’s vehicle supported this. Applegarth J stated, in this regard:

[88] Of the various possibilities canvassed by the plaintiff’s submissions as to how the light switch may have been turned off, impact during the collision or a knock during the rescue attempt are the most likely. The light switch must have been in the vicinity of the plaintiff’s trapped body.

[96] To prove a breach of duty the plaintiff must prove that the first defendant driver would have perceived the presence of his car had reasonable care been exercised. If the plaintiff’s car was unlit and incapable of being reasonably seen, then the plaintiff will fail to prove a breach of duty. Therefore, in the circumstances of this case the plaintiff must prove on the balance of probabilities that the lights of the Mazda 6 were on. He is not required to exclude other possibilities beyond reasonable doubt. However, he is required to advance possible and plausible explanations as to why the light switch was found in an off position, and prove that the whole of the evidence makes it more likely than not that his headlights were on. In my view, the second defendant’s three car theory is not supported by a consideration of all of the evidence. It is more likely than not that the headlights which Ms Iose saw were the same headlights that the first defendant saw. It is more likely than not that those were the headlights of the Mazda 6.

Speed and direction of the vehicles prior to the collision

As to the speed, his Honour found the expert reports to be of slight probative value, especially the reports of Mr Keramidas because of the varied assumptions they were reliant on. Dr Gilmore concluded that “it was between less than 70 kilometres per hour and up to 120 kilometres per hour” and was similarly based on assumptions that were highly variable.

Applegarth J stated, of the first defendant’s vehicle:

[100] … no firm conclusion can be reached about the precise speed of the Mazda 2 at the point of impact, other than to conclude that it was probably less than 20 kilometres per hour. Any expert analysis depends on assumptions about its course and the curve of the turn that it made prior to impact. …

As to the plaintiff’s vehicle, his Honour stated that any finding in this regard would be dependent on all the evidence. After considering this evidence, his Honour continued:

[125] While it would be an error to simply adopt a mid-point in the wide range of speeds left open by the expert evidence or to guess at a speed based simply upon an intuitive response to photographs of the Mazda 6 wrapped around the utility pole, it is still possible to draw reasonable inferences based on the extent of damage to the Mazda 6 and to the Mazda 2. Any such inference must take account of the point of impact of each vehicle and the likely angle at which they collided, so as to cause the Mazda 2’s engine to be dislodged and for the Mazda 2 and its engine to each travel a substantial distance. …

[127] Having regard to the information provided by the expert reports into what is known (for example, distances of movement of objects after the collision) and what is unknown (for example, how far objects travelled through the air and how far they skidded or bounced) and having regard to the extent of damage, it is reasonable to infer, in my view, that the Mazda 6 had a speed of more than 70 kilometres per hour at the point of impact.

Conclusion

Applegarth J found that the defendant failed to keep a proper lookout. His Honour stated:

[137] … I conclude that she did not properly assess the distance to the Mazda 6 when she first saw it or its speed, and misjudged that it was further away from her than it actually was. Having failed to keep a proper lookout, and being confident that she could turn in front of the oncoming car, the first defendant probably looked in the direction of her intended path of travel and continued to fail to keep a proper observation of the car whose path she intended to cross. …

Further, Applegarth J was satisfied that the plaintiff’s excessive speed was contributorily negligent and probably closer to 90 kilometres per hour. His Honour stated:

[148] Having regard to the degree of culpability of each driver and the respects in which each driver’s negligence caused the collision, I conclude that the liability should be apportioned in favour of the plaintiff and that there should be a reduction on account of contributory negligence of 30 per cent.     

As to causation, his Honour stated:

[143] I do not agree that a collision still would have happened had the plaintiff been travelling at 70 kilometres per hour or less as he approached the intersection. Had the Mazda 6 been travelling at less than 70 kilometres per hour rather than substantially in excess of it, it would have arrived at the intersection later, probably after the first defendant had completed the turn. The first defendant misjudged the amount of time which she had to complete the turn and the speed of the Mazda 6 contributed to that misjudgement. A collision was not inevitable and it probably would not have occurred if the plaintiff had not been speeding in the first place or reduced his speed to 70 kilometres or less when he was a substantial distance from the intersection.

Judgement was given for the plaintiff, the parties to calculate damages based on his Honour’s apportionment, having compromised quantum on the first day of trial.

David Cormack – Brisbane Barrister & Mediator

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