Bucholz v Kraft [1998] QCA 103

IN THE COURT OF APPEAL [1998] QCA 103 SUPREME COURT OF QUEENSLAND Appeal No. 9655 of 1997 Brisbane [Bucholz v. Kraft] BETWEEN: ANDREW RAYMOND BUCHOLZ (Plaintiff) Appellant AND: FRANK ANTHONY KRAFT (Defendant) Respondent Fitzgerald P. McPherson J.A. Davies J.A. Judgment delivered 22 May 1998 Judgment of the Court APPEAL DISMISSED WITH COSTS TO BE TAXED. CATCHWORDS: NEGLIGENCE - personal injuries - standard of care - whether mere possibility of child entering main road at speed on trail bike was sufficient to create duty of care Counsel: Mr R.T. Whiteford for the appellant. Mr R.F. King-Scott for the respondent. Solicitors: Roberts Mason & Company for the appellant. O’Mara Patterson & Perrier for the respondent. Hearing Date: 20 May 1998 -- 1 of 3 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 9655 of 1997 Brisbane Before Fitzgerald P. McPherson J.A. Davies J.A. [Bucholz v. Kraft] BETWEEN: ANDREW RAYMOND BUCHOLZ (Plaintiff) Appellant AND: FRANK ANTHONY KRAFT (Defendant) Respondent REASONS FOR JUDGMENT - THE COURT Judgment delivered 22 May 1998 This is an appeal against a decision in the District Court at Kingaroy on 3 October 1997 dismissing the appellant’s action and ordering him to pay the respondent’s taxed costs of and incidental to the action. The appellant was injured on 9 November 1984, when he was ten years old. Damages were agreed at $85,000. His claim was that he had been injured by the negligent driving of the respondent, but the District Court found that the respondent had not been negligent. By his appeal, the appellant challenges that conclusion. He accepts all findings of primary fact by the trial judge, but submits that, on those findings, the trial judge should have held that the respondent was negligent in failing to see or hear the appellant’s approach until too late and/or in travelling at an excessive speed in the circumstances, including his limited opportunity to see the appellant’s approach. -- 2 of 3 -- It is not necessary to discuss the facts in detail. The respondent was travelling home from work in a southerly direction along the highway from Nanango to Yarraman. The permissible speed at that point on the highway was 80 kph, but the respondent was travelling at only approximately 60 kph because he intended to pull into a service station located a little further south along the highway. He was driving a relatively low vehicle, with the driver’s side window partially open and no source of noise within the car. He saw and heard the appellant only momentarily before his noisy trail bike struck the driver’s side of the respondent’s vehicle. The appellant had ridden his trail bike onto the highway from a minor side road at almost full speed, about 60 kph. The visibility which the respondent had towards the side road was comparatively poor, because of a fence, high grass and perhaps signs and bushes. However, the respondent had no reason to reduce his speed further as he approached the intersection. There was, at most, the merest possibility that a vehicle would suddenly emerge from the side road and enter the highway at a speed which would cause a collision with the respondent’s vehicle. In his careful argument, counsel for the appellant drew our attention to all the passages of evidence which he submitted vitiated the conclusions drawn by the trial judge from his findings. Neither the evidence, nor counsel’s submissions, cause us to doubt that the trial judge’s findings and conclusions were not only open to him but plainly correct. The standard which the appellant seeks to impose upon the respondent is impossibly high, and far in excess of what is expected of a reasonable person. The appeal should be dismissed, with costs to be taxed. -- 3 of 3 --