Coe v Kernovske & Ors [1990] QSCFC 3 (1990)10 M.V.R. 563

f"c 9of003 <b IN THE SUPREME COURT OF QUEENSLAND FULL COURT APPEAL NO. 64 of 1989 BETWEEN: STEVEN JOHN COE ( Plaintiff) Respondent AND: KENNETH ANDREW KEKNQVSKE (First Defendant ) AND: DONALD DESMOND LOOBY (Second Defendant) Respondent AND: FIRE AND ALL RISKS INSURANCE COMPANY LIMITED (Defendant by Election) Appellant McPherson J. de Jersey J. Lee J. Reasons for judgment delivered by de Jersey J. on the 21st February, 1990. McPherson J. and Lee J. agreeing with the reasons and orders of de Jersey J. "APPEAL OF THE DEFENDANT BY ELECTION BE DISMISSED AND ORDER THE APPELLANT TO PAY THE COSTS OF THE RESPONDENTS (THE PLAINTIFF AND SECOND DEFENDANT) OF AND INCIDENTAL TO THE APPEAL TO BE TAXED. CROSS-APPEAL BE ALLOWED AND ORDER THE JUDGMENT BELOW BE VARIED BY SUBSTITUTING AS THE AMOUNT OF THE JUDGMENT, THE SUM OF $185,902.00. FURTHER ORDER THE RESPONDENT/DEFENDANT BY ELECTION PAY THE PLAINTIFF'S COSTS OF AND INCIDENTAL TO THE CROSS APPEAL TO BE TAXED." [1990] QSCFC 3 -- 1 of 8 -- Rc. qoloo3 IN THE SUPREME COURT OF QUEENSLAND Appeal No. 64 of 1989 Before the Full Court Mr. Justice McPherson Mr. Justice de Jersey Mr. Justice Lee BETWEEN: AND: STEVEN JOHN COE (Plaintiff) Cross Appellant KENNETH ANDREW KERNOVSKE (First Defendant) AND: DONALD DESMOND LOOBY (Second Defendant) Respondent AND: FIRE AND ALL RISKS INSURANCE COMPANY LIMITED (Defendant by Election) Appellant JUDGMENT - de JERSEY J. Delivered the 21st day of February, 1990. CATCHWORDS : Counsel: Mr. R.R. Douglas Q.C. and Mr. R.W. Trotter for appellant/defendant by election Mr. G.L. Davies Q.C. and Mr. M.M. Stewart for respondent/second defendant Mr. P.H. Morrison Q.C. for respondent/plaintiff/ cross appellant Solicitors: Messrs Baker Johnson for appellant/defendant by election Messrs Quinlan Miller & Treston for respondent/second defendant Messrs Corser Sheldon & Gordon for respondent/plaintiff /cross appellant Hearing dates: 14th and 15th February, 1990 -- 2 of 8 -- FG FO GQ0 IN THE SUPREME COURT OF QUEENSLAND Appeal No. 64 of 1989 BETWEEN: STEVEN JOHN COE (Plaintiff) Cross Appellant AND : KENNETH ANDREW KERNOVSKE (First Defendant) AND : DONALD DESMOND LOOBY (Second Defendant) Respondent AND: FIRE AND ALL RISKS INSURANCE COMPANY LIMITED (Defendant by Election) Appellant JUDGMENT - de JERSEY J. Delivered the 21st day of February, 1990. The appellant is the defendant by election in an action for damages in respect of injuries suffered by the plaintiff because of a motor vehicle collision on 25th November, 1985. The learned trial Judge found the first defendant responsible for the collision, and assessed damages at $185,902.00. He reduced that sum by 20 per cent in respect of the plaintiff's failure to wear a seat belt, and gave judgment for the plaintiff against the defendant by election for $148,722.00. The collision occurred on Boonooroo Road near Maryborough, at night time. The plaintiff was a passenger, with another, in -- 3 of 8 -- 2 a Toyota four wheel drive vehicle being driven by the first defendant towards Maryborough. The Toyota collided with a Humber sedan driven by the second defendant, which was facing in the opposite direction, towards Maroom. Mrs. White was a passenger in the Humber. The learned Judge found that at the time of the collision, the Humber was stationary on its correct side of the road, and that the Toyota veered over onto its incorrect side of the road. Hence his finding that the first defendant was solely responsible for the collision. The appellant challenges the finding that at the time of the collision, the Humber was stationary on its correct side of the road. In reaching that conclusion, the learned Judge accepted and relied on the evidence of the second defendant and his passenger Mrs. White, and rejected evidence to the contrary from the first defendant and his passengers. His Honour had formed an unfavourable opinion of their credibility, not confined to doubting the reliability of their recollections. Counsel for the appellant accepted that he was therefore confined to an analysis of the evidence on which His Honour relied. Counsel criticised the learned Judge's reliance upon the evidence of the second defendant, on the basis that the second defendant's evidence at the trial was inconsistent with a version given by him to the investigating police officer after the accident. After the accident, the second defendant said that he could not recall events beyond a certain point, whereas at the trial, he claimed to have a more extensive recollection. That of course did not mean that His Honour could not accept as -- 4 of 8 -- 3 credible the account given at the trial. Other very minor criticisms were made, and none had any substance. Then there was criticism of His Honour's reliance on the evidence of an engineer, Mr. Edmiston, who, having examined the Humber, expressed the opinion that its engine was not operating when the collision occurred. In reaching that view, he took account of some scoring and bruising to the radiator core in the vicinity of the fan. During cross-examination, it emerged that Mr. Edmiston was under a misapprehension as to whether the fan blades turned clockwise or anticlockwise. Counsel for the appellant relied on this for a contention that Mr. Edmiston's opinion was therefore unreliable. The trial Judge heard the evidence and no doubt took that factual error into account. But in any event, an examination of the engineer's evidence shows that the misunderstanding did not necessarily contribute in any way to his opinion. Indeed, the reference at p. 236 Ins. 30-40 of the record to shallow scoring indicates that Mr. Edmiston's opinion about the engine not operating was influenced by the nature of the scoring, rather than by the direction of travel of the fan blades. Most of the time at the hearing of the appeal was spent on the diagram ex. 26, which, it was said, demonstrated that the collision could not have happened in accordance with the learned Judge's findings. (That diagram is wrong in so far as it gives directions to Maryborough and Maroom, which have been reversed. ) There was evidence that the Humber ended up towards the top of the page showing the diagram in the appeal record, near the "grease and oil" note at the end of the 30 metre score mark. -- 5 of 8 -- 4 Counsel for the appellant related that score mark to the Humber, and suggested as improbable that having been hit by the Toyota, the Humber would then nevertheless have moved forward some 30 metres before coming to rest. There is an answer in the evidence. After the collision, the Toyota rolled over. The Toyota may itself have been responsible for that score mark, and the other marks shown on the drawing as the Toyota rolled and veered along the road to its final position towards the foot of the page. There is no ground upon which we could interfere with His Honour's finding, which finds ample support in the evidence accepted by him. I would dismiss the appeal of the defendant by election, and order that appellant to pay the costs of the respondents (the plaintiff and the second defendant) of and incidental to the appeal to be taxed. The plaintiff cross appeals against the finding that the plaintiff was 20 per cent contributorily negligent. He was a middle front seat passenger, and was not wearing his seat belt. The vehicle rolled over. It was that circumstance which substantially influenced His Honour to find that the plaintiff had been contributorily negligent, notwithstanding the absence of any expert evidence as to any likely contribution of that movement of the vehicle taken with absence of restraint, to the injuries the plaintiff suffered. His Honour's findings were: "The question then arises whether the damage suffered by the plaintiff was caused or contributed to by his failure to use a seat belt. There is no direct evidence which enables me to say what effect, if any, the failure to wear a seat belt had in causing or contributing to his loss, but I consider that it -- 6 of 8 -- 5 should be inferred that such failure contributed substantially to his loss, in circumstances when he was injured in an accident which involved the vehicle in which he was travelling rolling over." Before us, Counsel for the plaintiff submitted, in essence, that to infer that the failure to wear a seat belt contributed substantially to the plaintiff's loss was merely to speculate. The major injury to the plaintiff was torn ligaments in the knee. There were other minor injuries, including abrasions to the forehead and face, right arm, neck and feet, and muscular strain. There was an indentation to the dashboard of the car, but the dashboard was quite high, and the indentation would not necessarily have been caused by contact with the knee, the site of the major injury. The vehicle rolled over, but it may be significant that when it came to rest, the plaintiff was still in the front middle seat. The windscreen did not shatter. Was the learned Judge correct in these circumstances to infer that substantial contributing relationship between the failure to wear the seat belt and the major injury, the injury to the knee? While I appreciate that a certain broadness should often accompany one's approach to such issues, I have reached the view that to draw the inference drawn here was to approach the matter too broadly, and to go beyond the reasonable limits of the evidence. To conclude, in the absence of evidence directly supporting the existence of a relationship between the injury to the knee and the lack of restraint, that had the plaintiff been restrained, he would probably not have suffered that knee injury or so serious an injury when the vehicle rolled over, involved, in my respectful view, ignoring the -- 7 of 8 -- 6 circumstances that although the vehicle rolled over, the plaintiff ended up in the same position, and the windscreen remained intact, and that because of the height of the dashboard, the indentation to it may have been caused by contact with some other part of the plaintiff's body. In my opinion, the defendants failed to establish that the plaintiff was contributorily negligent, notwithstanding the finding that he failed to wear his seat belt. There was no evidence to establish, directly or by inference, that the wearing of the seat belt would have made any difference to the damage suffered by the plaintiff. I would therefore allow the cross appeal, and order that the judgment below be varied by substituting, as the amount of the judgment, the sum of $185,902.00. I would order the respondent the defendant by election to pay the plaintiff's costs of and incidental to the cross appeal to be taxed. -- 8 of 8 --