Braico v Leishman & Anor [1991] QSCFC 142

Vi; 'X V ) y TRANSCRIPT OF PROCEEDINGS State Reporting Bureau, 4th Floor, Tne Law Courts, George Street, BRISBANE. O. 4000 Tel. (07) 227.4360.^ (Copyright in this transcript be made or sold without the Bureau.) is vested written in the Crown. Copies thereof must not authority of the Director, State Reporting REVISED COPIES ISSUED Court Reporting Bureau Date-, \\f ^ /<^ \ SUPREME COURT OF QUEENSLAND full court THOMAS J DERRINGTON J MOYNIHAN J Appeal No 37 of 1991 RONALD NOEL j;) and ) DIANA LEISHMAN Defe ndant) Respondent Appellant and SUNCORP INSURANCE AND FINANCE (Second Defendant) Respondent BRISBANE ..DATE 31/10/01 . . JUDGMENT 9.30 A.M. /U-d- 1 [1991] QSCFC 142 -- 1 of 8 -- ] 311091 JUDGMENT ' MR JUSTICE THOMAS : In my view the appeal should be dismissed with costs. I agree with the reasons about to be published by my brother Moynihar 10 MR JUSTICE DERRINGTON: I also agree. 20 MR JUSTICE MOYNIHAN: In this case I would dismiss the appeal and order the appellant to pay the respondent's costs of the appeal to be taxed for the reasons which I now publish. MR JUSTICE THOMAS: The order will be appeal dismissed with costs. BO 40 50 60 Govt. Printer, Qld. 2 -- 2 of 8 -- fc, & \ IN THE SUPREME COURT OF QUEENSLAND FULL COURT Appeal No. 37 of 1991 BETWEEN : RONALD NOEL BRAICO (Plaintiff) Respondent AND : DIANA LEISHMAN (First Defendant) Appellant AND: SUNCORP INSURANCE AND FINANCE (Second Defendant) Respondent THOMAS J DERRINGTON J MOYNIHAN J Reasons for judgment delivered by Moynihan J on 31st October, 1991. Thomas and Derrington JJ agreeing with those reasons and with the order proposed. "APPEAL DISMISSED. ORDER THE APPELLANT TO PAY THE RESPONDENT'S COSTS OF THE APPEAL TO BE TAXED." -- 3 of 8 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Before the Full Court Mr. Justice Thomas Mr. Justice Derrington Mr . Justice Moynihan Appeal No. 3l of 1991 BETWEEN : RONALD NOEL BRAICO (Plaintiff) Respondent AND: AND: DIANA LEISHMAN (First Defendant) Appellant SUNCORP INSURANCE AND FINANCE (Second Defendant) Respondent JUDGMENT - MOYNIHAN J. Delivered the 31st day of October, 1991 CATCHWORDS: Counsel: Mr. Mr. Mr. Solicitors: Hanson Q.C. for appellant Copley Q.C. with Mr. Hack for second defendant Houston for respondent Mclnnes Wilson & Jensen t/a for Lindsay & Co. for appellant Hearing date: Gayler Cleland Dunstan Towne for second defendant Bottoms Davies Nash for respondent 8th October, 1991 -- 4 of 8 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Appeal No. 57 of 1991 BETWEEN : RONALD NOEL BRAICO (Plaintiff) Respondent AND: DIANA LEISHMAN / ^ (First Defendant) Appellant AND: SUNCORP INSURANCE AND FINANCE ^ (Second Defendant) Respondent JUDGMENT - MOYNIHAN J. Delivered the 31st day of October, 1991 This is an appeal against a ruling by a trial Judge that the evidence the appellant proposed to call from two individuals named Wigglesworth and Robson was inadmissible. The case arose out of a collision between a motor cycle on which the plaintiff was travelling as a pillion passenger and a w/1 motor car being driven by the appellant. The collision occurred at an intersection on the outskirts of Cairns. The motor cycle was being ridden towards Cairns on a carriageway consisting of one trafficable lane separated by a median strip from the carriageway for vehicles travelling in the opposite direction. The appellant was travelling on the lastmentioned carriageway away from the direction of Cairns and proceeded to execute a right-hand turn at the intersection. There was a turn lane for vehicles carrying out for such a manoeuvre. The collision occurred at about 6.30 p.m. on 3 September 1988. The trial Judge -- 5 of 8 -- 2 concluded that it was appropriate to characterise the conditions of the natural light as dusk or twilight. One of the issues at the trial was whether the motor cycle had its headlight on. The Judge accepted the evidence of a man named McGrath to the effect that he had observed that the motor cycle had its headlight on when it overtook his vehicle shortly before the collision and that as he followed it to the scene of the collision its tail light was burning. At the time of the collision McGrath was shortly behind the motor cycle the approach of which the trial Judge found had not been observed by the appellant. It is perhaps material to note that he also found that the appellant had failed to observe the lights of McGrath's vehicle which, as I have said, was at the relevant time a short distance behind the motor cycle and travelling in the same direction as it was. The circumstances being those that I have outlined, the trial Judge concluded that the respondent's injuries were caused by the negligence of the appellant. The evidence of the proposed witnesses was to be directed to the issue of whether the motor cyclist's headlight was on immediately prior to the collision. The proposed witnesses were travelling in a motor vehicle which had been overtaken by the motor cycle at least four kilometres from the scene of the collision. The evidence which the witnesses were to give does not appear directly from the record. This is because the evidence was not in fact tendered, rather the trial Judge was invited to rule on the admissibility of the evidence on the basis of the opening. He acceded to this invitation. Such knowledge of the evidence to be tendered as is available to this court is -- 6 of 8 -- 3 to be gained by what is recorded of the opening of the appellant's case and of the argument on the issue of admissibility. As is usual these were not fully recorded or at least transcribed. The Judge's remarks in dealing with the objections also provides some basis for inference as to some aspect of what he understood the evidence was to be. The condition of the record in the respect to which I have referred is somewhat ironic since more than half of it is made up of evidence directed to the issue of damages which is not the subject of appeal and which indeed was compromised prior to the conclusion of the trial. At this stage it is pertinent to note that at the forefront of submissions in support of the appeal was the contention that the evidence of the two witnesses was relevant because it tended to prove that the headlight switch mechanism of the motor cycle was defective. This issue did not arise from the pleading. It arose rather as an attempt to reconcile what might otherwise have been thought to be conflicting observations by the two proposed witnesses. It is to be noted that His Honour apparently understood the evidence to be called from Wigglesworth to include that the headlight of the motor cycle was not on as it followed the vehicle in which he was travelling but that the tail light was on as the cycle drew ahead. As His Honour remarked this perfectly consistent with the lights being turned on in the course of the overtaking manoeuvre which as I have said was at least four kilometres from the scene of the collision. It was sought to bolster the submission as to possible defect by -- 7 of 8 -- 4 reference to observations of the conduct of the motor cyclist and the pillion passenger made by Wigglesworth and Robson. It seems at the trial however that evidence was directed rather to an issue as to the quality of the driving of the motor cycle than it was to an issue as to the state of the headlights. It seems to me that the trial Judge was perfectly entitled to conclude that, given the considerations to which I have adverted, the observations of Wigglesworth and Robson made, four or more kilometres from the scene of the collision was so lacking in probative value as to be irrelevant. The exclusion of the evidence does not constitute a substantial wrong or miscarriage as contended for by the appellant. I would dismiss the appeal and order the appellant to pay the respondent's costs of the appeal to be taxed. -- 8 of 8 --