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- Buchan v Nominal Defendant[2012] QCA 136
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Buchan v Nominal Defendant[2012] QCA 136
Buchan v Nominal Defendant[2012] QCA 136
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | SC No 7075 of 2008 |
Court of Appeal | |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | |
DELIVERED ON: | 25 May 2012 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 27 April 2012 |
JUDGES: | Holmes and Fraser JJA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | Appeal dismissed with costs. |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – OTHER MATTERS – where s 60 of the Motor Accident Insurance Act 1994 (Qld) entitles the respondent to recover from the owner or driver of an uninsured vehicle any costs it reasonably incurs on a personal injury claim arising out of a motor vehicle accident involving the uninsured vehicle – where the respondent made a claim against the appellant in respect of its costs of settling a dependency action – where the deceased in question had been thrown from a bridge as a result of a motor cycle accident and his body not recovered – where the appellant was the owner of the motor cycle involved in the motor vehicle accident that resulted in the death of the deceased – where there was a question as to whether the appellant or the deceased was the driver of the motor cycle at the time of the accident – where the appellant was also injured in the accident and had no recollection of the accident and associated circumstances – where the trial judge determined that it was reasonable for the appellant to compromise the dependency claim on the basis of a likely finding, were the matter to go to trial, that the appellant was the driver of the motor cycle – whether the trial judge erred in making that finding Motor Accident Insurance Act 1994 (Qld), s 60 Nominal Defendant v Buchan [2011] QSC 364, cited |
COUNSEL: | A J Kimmins for the appellant K N Wilson SC for the respondent |
SOLICITORS: | Mellick Smith & Associates for the appellant Cooper Grace Ward for the respondent |
[1] HOLMES JA: Section 60 of the Motor Accident Insurance Act 1994 entitles the Nominal Defendant to recover from the owner or driver of an uninsured vehicle any costs it reasonably incurs on a claim for personal injury arising out of a motor vehicle accident involving the vehicle. The Nominal Defendant, the respondent in this appeal, made such a claim against the appellant in respect of its costs of settling a dependency action. The deceased, Kevin Beal, had been killed in an accident involving an unregistered and uninsured motor cycle belonging to the appellant. The appeal was from a decision of the Chief Justice giving judgment for the Nominal Defendant on its claim. It was common ground that de Jersey CJ had correctly characterised the issue as
“whether it was reasonable for the plaintiff [Nominal Defendant] to compromise the dependency claim on the basis of a likely finding, were the matter to go to trial, that the defendant Buchan was the driver of the motor cycle”.[1]
The appellant argued that the Chief Justice had erred in finding in the affirmative.
The evidence
[2] The circumstances of the accident were unusual. The appellant and Mr Beal had been riding the motor cycle near Weipa at night on 20 April 2002, crossing a bridge over the Mission River and travelling a little way beyond. They were returning over the bridge at about 10.00 pm when the driver lost control of the motor cycle. The appellant was found lying on the eastern side of the bridge, with serious head injuries. He had no recall of the events of the night. Mr Beal had fallen into the river below; his body was not recovered. A railway bridge ran parallel, at a distance of 850 mm, to the road bridge on its eastern side. It was possible that Mr Beal had been thrown over the railway bridge or that he had landed on it and rolled off. The Nominal Defendant compromised a dependency proceeding brought by Mr Beal’s de facto wife and children on the basis that if the case were to go to trial it was likely that a trial judge would find, on the balance of probabilities, that the appellant was the driver of the motor cycle and Mr Beal his passenger.
[3] There was no dispute at first instance that the accident involved negligence on the part of whoever was driving the motor cycle, without any contributory negligence on the part of the pillion passenger. The Chief Justice considered various contentious pieces of evidence and the challenge the appellant made to the Nominal Defendant’s reliance on them, before concluding that the aggregation of the circumstances identified provided a sufficient foundation for the Nominal Defendant’s view that a court would, on the balance of probabilities, find that the appellant was driving the motor cycle. In dealing with those evidentiary matters, his Honour referred first to the fact that the appellant had been seen riding his motor cycle on the afternoon of the day of the accident. He was its owner and he had, in response to a request for information, said that he did not recall Mr Beal riding it at any time in the past or talking about doing so. The appellant’s complaint of the primary judge’s approach to the evidence in that respect was limited to an assertion that those considerations could be of little weight.
[4] More attention was given to challenging what the Chief Justice made of some eye witness evidence as to the appearance of the pillion passenger on the motor cycle. Two boys, aged 16 and 17, saw the motor cycle as it was heading towards the bridge where they were standing. Neither of the men on the motor cycle was wearing a helmet. The younger boy said he did not recognise either, although he had got a glimpse of the pillion passenger. In a statement taken in July 2002, he said that that man had “relatively short” hair, which looked a dark colour, although that might have been due to its being night time. At an inquest a year later, he said he remembered seeing that the man had wavy hair. The older boy said in a statement made in April 2002 that he did not see the driver of the motor cycle, but the passenger had hair to his collar, and he did not recognise him as the appellant, whom he knew. In a later statement, made in October 2002, he said that the pillion passenger had shoulder-length blonde or sandy coloured hair.
[5] Later still in a coronial inquest in August 2003, the older of the witnesses said that he was “pretty certain” that the passenger had blonde hair. His answers were not marked by their clarity. One particularly confusing passage read as follows:
“And you can say that the fellow that was on the pillion passenger on this bike – on this motor bike this night definitely was not John Buckham [sic]? – Well I don’t – he had – yeah – no.
What? – What’s that mean? – Hey? – What does, yeah – yeah, no – no – no, mean? – Well, no, it wasn’t him.
It wasn’t him? – No.”