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Rosily v QBE Insurance (Australia) Ltd[2022] QDC 100

Rosily v QBE Insurance (Australia) Ltd[2022] QDC 100

DISTRICT COURT OF QUEENSLAND

CITATION:

Rosily v QBE Insurance (Australia) Ltd [2022] QDC 100

PARTIES:

GILA GOLDA ROSILY

(plaintiff)

v

QBE INSURANCE (AUSTRALIA) LTD

(defendant)

FILE NO/S:

BD 3752/19

DIVISION:

Civil

PROCEEDING:

Trial

DELIVERED ON:

29 April 2022 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

29 April 2022

JUDGE:

Allen QC DCJ

ORDERS:

  1. Judgment for the defendant.
  2. The plaintiff pay the defendant’s costs of the proceedings on the standard basis.

CATCHWORDS:

TORTS – NEGLIGENCE – OTHER PARTICULAR CLAIMANTS, DEFENDANTS AND CIRCUMSTANCES – ROAD ACCIDENTS – where the plaintiff claims damages for personal injuries suffered as a result of a motor vehicle accident – where the defendant denies liability – where the decision turns on findings of credibility of the plaintiff and the defendant’s witnesses – whether the plaintiff has established on the balance of probabilities that she suffered injury as a result of the negligence of the defendant

COUNSEL:

The plaintiff appeared on her own behalf

M P Williams for the defendant

SOLICITORS:

McInnes Wilson Lawyers for the defendant

  1. [1]
    The plaintiff claims damages for personal injuries, which she alleges she suffered at about 8.07 am on 3 June 2019 in the vicinity of the exit driveway from her property at 1-5 Crest Road, South Maclean.  Her statement of claim states that the vehicle she was driving was “swiped by Park Ridge school bus, plate number PRT048, causing her instant pain to her neck.” 
  2. [2]
    From 2015, the plaintiff lived at a property at 1-5 Crest Road, South Maclean.  The only vehicular exit route from that property was a driveway which led to a gravel area which was situated between Mount Lindesay Highway and Crest Road. The plaintiff, from the time of her occupation of the property through to the date of the alleged accident and beyond that time, had a strong grievance that the gravel area was used as a bus stop for the school run 3, conducted by Bus Queensland, and used for the transport of school children to Beaudesert State High School. 
  3. [3]
    The evidence from the plaintiff and other witnesses establishes that the bus would travel along the Mount Lindesay Highway before turning into Crest Road and then turning from Crest Road into the gravel area by a right-hand turn and, ultimately, exit by a loop back onto Crest Road in the direction it had come.  In the course of executing that loop, the bus would travel close to the place where the plaintiff, or when persons driving vehicles from the plaintiff’s property, would pass through that same gravel area. 
  4. [4]
    I have a clear understanding of the geography of the area and the usual route of travel of the bus from, not only the evidence of witnesses, but also the photographs and videos that have been put into evidence.  That understanding of the geography has assisted me in considering the respective versions given by the plaintiff and witnesses called by the defendant.
  5. [5]
    The plaintiff’s claim is that, on the morning of 3 June 2019, she was travelling down her driveway through the exit from her property towards the gravel area when she was involved in an accident with the bus as it was travelling onto the gravel area to park and pick up school children.  The plaintiff alleges that, because of the negligence of the driver of the bus, a Mr Brian Small, her vehicle either collided with the bus or came or was forced to a sudden stop and, as a result, the plaintiff suffered injury to her cervical spine.  She claims continuing pain and suffering, loss of amenities of life and other damages as a consequence of that injury she alleges was caused by the negligence of the bus driver, Mr Small. 
  6. [6]
    The defendant’s case is that there was no collision at all between the plaintiff’s vehicle and the bus and that the fact that the plaintiff came to a sudden stop in her motor vehicle was not as a result of any negligence on the part of Mr Small but was entirely as a result of the plaintiff’s own operation of her motor vehicle. 
  7. [7]
    Ultimately, the determination of this matter has come down to a question of findings of credit of the plaintiff, on one hand, and the witnesses called by the defendant, Mr Small, and also an eyewitness to the events, a Ms Pamela Pedder. 
  8. [8]
    The plaintiff was the most unimpressive witness; ultimately, in my view, completely lacking in credibility.  She was repeatedly nonresponsive in answering questions during her testimony.  She was repeatedly evasive in answering questions as to her knowledge of the usual operation of the bus on school mornings.  In my view, on all the evidence, including my observations of the plaintiff’s demonstration of restriction to her neck in the witness box, she grossly exaggerated the extent of any injury she might have suffered on 3 June 2019.
  9. [9]
    On the crucial issue of the movement of her vehicle and her observations of the movement of the bus on the morning of 3 June 2019, the plaintiff’s evidence was vague, at times incomprehensible and, ultimately, entirely unconvincing.  The plaintiff prevaricated as to whether or not her vehicle came into contact with the bus.  At times she seemed to concede that it did not, but at other times she appeared to maintain there was some damage to the front of her vehicle as a result of a grazing collision.  The plaintiff’s contention that further damage was caused to the dashboard of her vehicle as a result of the accident is entirely untenable. Her claim for the replacement cost of the motor vehicle does her no credit.  Likewise, some of the other extravagant claims for damages were, likewise, adverse to the plaintiff’s credit. 
  10. [10]
    The plaintiff’s evidence that, as she was proceeding down her driveway, at a slow pace, on a clear day, she was suddenly confronted with the front of the bus heading towards her, a short distance away, made no sense at all.  Her account was entirely illogical and unacceptable, as a matter of common sense.  Furthermore, the plaintiff’s account was directly contradicted by evidence led by the defendant, which I do accept. 
  11. [11]
    Ms Pamela Pedder gave evidence of her observations of events on 3 June 2019.  Ms Pedder impressed as an honest, measured witness.  She would, as a matter of habit, at that time, after parking her vehicle, watch her two children travel across Crest Road to the gravel area, where they would wait to be collected by the school bus.  She did such on 3 June 2019.  Her attention was, therefore, directed towards the area where the accident is alleged to have occurred.  She was alarmed to see the plaintiff driving her vehicle down her driveway, at some speed, through the gateway towards that part of the gravel area where the bus would, customarily, execute its right-hand turn onto the gravel area, before pulling up to pick up passengers.  She was alarmed to see the plaintiff’s motor vehicle travelling at some speed towards that point.  She was concerned as to the welfare of her children.  She witnessed the vehicle come to a sudden stop and skid towards the bus, as it executed its right-hand looping manoeuvre onto the gravel area.  She was able to see that the front of the plaintiff’s vehicle did not, in fact, connect with the side of the bus, but it came close enough that she was concerned that a collision might have happened.
  12. [12]
    The driver of the bus, Mr Small, gave evidence of an occasion, which was obviously a description of events occurring at about 8.07 am on 3 June 2019.  He gave evidence of driving a bus down Crest Road, towards the gravel area that was used as a bus stop, in the direction of the gateway to the plaintiff’s property.  He gave evidence that the plaintiff sped down her driveway, as if she was going to run into the bus, that he halted the bus and saw that the plaintiff had stopped her vehicle about two metres away from the side of the bus.  He described the wheels spinning, which I understood as being consistent with the description of Ms Pedder, of the vehicle skidding to a stop.  He confirmed that there was no impact between the front of the plaintiff’s vehicle and the bus. 
  13. [13]
    As adverted to when referring to the plaintiff’s evidence, all the evidence is that the day was clear, there were no obstructions to the plaintiff being able to see the approach of the bus towards the gravel area, as it travelled down Crest Road, if she had been keeping any lookout. 
  14. [14]
    Mr Small, obviously, had some antagonism towards the plaintiff, because of her history of harassment of him, as the bus driver from 2015 onwards.  Nevertheless, he impressed me as a straightforward, honest witness and I, unreservedly, accept the evidence of both Ms Pedder and Mr Small, in preference to that of the plaintiff. 
  15. [15]
    Their evidence is also supported by the contents of the bus interior CCTV footage.  It shows the bus turning off a roadway onto a gravel surface at a safe speed.  The driver does seem to pause, before completing the passage of travel towards where it, ultimately, stops to take on passengers and, at that point, some of the children on the bus are seen looking out the passenger side of the bus, it appears towards the front of a whiteish coloured vehicle, which can be seen through the passenger side windows of the bus.  I accept that that is, in fact, the vehicle that was being driven by the plaintiff on that morning.  There is nothing in the footage to suggest any impact, but there is also nothing in the evidence to suggest any negligent driving on the part of Mr Small.  The evidence that is visible is entirely consistent with the versions of events given by Ms Pedder and Mr Small.
  16. [16]
    I find that, at about 8.07 am on 3 June 2019, the bus driven by Mr Small proceeded down Crest Road towards the gravel area regularly used as a bus stop and in the direction of the gateway to the plaintiff’s property.  In its usual fashion, it turned right, from Crest Road onto the gravel area.  As it approached to pass the area adjoining the plaintiff’s driveway, the plaintiff drover her Hyundai motor vehicle down her driveway towards the bus, before skidding to a sudden stop.  There was nothing that would have prevented the plaintiff’s view of the bus, as it proceeded down Crest Road, before reaching the gravel area.  There was nothing preventing the plaintiff from seeing the bus, as she travelled down her driveway, if she was keeping any proper lookout. 
  17. [17]
    The plaintiff, I find, most likely, deliberately drove her motor vehicle towards the bus, as part of her continuing campaign of protest about the use of the gravel area outside her property as a bus stop.  It is less likely that she was merely grossly negligent in failing to keep any or any proper lookout.  In any case, her sudden stop was entirely as a result of either her deliberate actions or her negligence in failing to keep a proper lookout for other vehicles travelling on the gravel area.  She had an obligation to give way to such vehicles.  The sudden stop was not, in any way, as a consequence of the negligence of Mr Small, the driver of the bus. 
  18. [18]
    The plaintiff has failed to establish, on the balance of probabilities, that there was any breach of a duty of care owed by Mr Small to her.  She has failed to show that she suffered any injury by reason of the negligence of Mr Small. 
  19. [19]
    With respect to the element of damage, the proof of injury suffered on 3 June 2019 ultimately depended entirely upon the evidence of the plaintiff.  The medical evidence was not, in the absence of an acceptance of the evidence of the plaintiff that she suffered injury on that morning, such as to independently establish such an injury.  Given my findings as to the credibility of the plaintiff, I am not satisfied on the balance of probabilities that she in fact suffered any injury on 3 June 2019.  If she in fact suffered any injury on that date, it was no more than a temporary aggravation of a pre-existing injury to her cervical spine.  But, given my finding that I am not satisfied, on the balance of probabilities, that the plaintiff suffered any injury as a result of the negligence of Mr Small, I do not find it necessary to make any provisional assessment of quantum of what would be a most modest award of damages, indeed. 
Close

Editorial Notes

  • Published Case Name:

    Rosily v QBE Insurance (Australia) Ltd

  • Shortened Case Name:

    Rosily v QBE Insurance (Australia) Ltd

  • MNC:

    [2022] QDC 100

  • Court:

    QDC

  • Judge(s):

    Allen QC DCJ

  • Date:

    29 Apr 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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