- Unreported Judgment
IN THE SUPREME COURT OF QUEENSLAND
Appeal No. 94 of 1987
Mr. Justice Kelly S.P.J.
Mr. Justice Ryan
Mr. Justice Moynihan
BRISBANE, 20 OCTOBER 1987
(Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter, Court Reporting Bureau.)
PAUL STEPHEN CARSON
ANNE KATHERINE OWEN
MR JUSTICE KELLY: My brother Moynihan will deliver the first judgment.
MR JUSTICE MOYNIHAN: This is an appeal and a cross appeal from a decision of a District Court judge who had before him a case arising out of a collision between a car and a motor-cycle approaching one another from opposite directions on what might be conveniently described as a narrow winding country road.
The learned trial judge found that the defendant's vehicle, which was the motor car, was slightly overlapping the centre line of the road and that the plaintiff's cycle was either at the centre line or slightly on its correct side of the road but not sufficiently so as to be able to avoid the vehicle driven by the defendant.
Regard to the material which was placed in evidence shows that reference to a centre line is reference to a notional centre line.
Having found as he did the learned District Court judge apportioned liability equally as between the parties.
Having regard to the amounts which were involved the appeal before this Court proceeds not by way of rehearing but rather as an appeal from findings of fact by a jury. The constraints which are placed on the respective parties by this consideration are necessarily reflected in the course of the argument and in the outcome.
The appellant motor-cyclist did not complain about the finding of contribution but rather contended that the apportionment of liability ought to be interfered with because of what was said to be an inconsistency in the finding of fact operating on the learned trial judge's consideration of the apportionment. It is true that at one part of the judgment the learned judge makes reference to a measurement of 1.72 metres where it would seem that a reference to 2.3 metres might be more apposite. But a consideration of a portion of the judgment which follows, to which I have made reference, shows that His Honour seems to have been alert to the fact that the correct measurement was in the particular circumstances 2.3 metres.
In any event, in order to demonstrate that the discretion of the judge in apportioning as he did miscarried it is necessary to point to some fundamental error vitiating the exercise, and to my mind that simply has not been done particularly when one bears in mind the explanation of the measurements which was the aspect of the findings principally relied on.
On the cross appeal it was contended by the respondent in advancing the cross appeal that there was no evidence which was capable of supporting His Honour's finding to which I have referred. It is true that one may be able to point to certain aspects of His Honour's findings in isolation and to relate them to certain aspects of the evidence in isolation in a way which might be capable of requiring further consideration if this was an appeal by way of rehearing. But His Honour decided the case on the totality of the evidence in the light of his assessment of the evidence.
I am not persuaded that His Honour in reaching the conclusions he did drew anything other than inferences which were susceptible of being drawn from the totality of the evidence, depending on the view which one took of it and, of course, the view to be taken of the evidence was entirely a matter for His Honour.
I am therefore not persuaded that it has been demonstrated that there was no evidence capable of supporting His Honour's conclusion that the defendant's vehicle was slightly overlapping the centre of the road at the time of collision.
The respondent in cross appealing did not seek to contend that there ought to have been any alteration of the apportionment favoured by the learned trial judge.
In the circumstances I would dismiss the appeal and cross appeal and I would make no order as to costs.
MR JUSTICE KELLY: I agree.
MR JUSTICE RYAN: I also agree.
MR JUSTICE KELLY: The order of the Court is that both the appeal and the cross appeal are dismissed and there will be no order as to costs.
- Published Case Name:
Paul Stephen Carson v Anne Katherine Owen
- Shortened Case Name:
Paul Stephen Carson v Anne Katherine Owen
 FC 99
Mr. Justice Kelly S.P.J., Mr. Justice Ryan and Mr. Justice Moynihan
20 Oct 1987
No Litigation History