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Projectile case not regulated by motor accident legislation

Case note: Hornby v Opbroek & Anor [2015] QDC 101

MAIA – Motor Accident Insurance Act – CTP Lawyers Brisbane – Road Accident Brisbane – CTP Insurance Qld what does it cover? 

Background

Sarah Hornby (Plaintiff) brought an application for a declaration that her claim for personal injuries was regulated by the Motor Accident Insurance Act 1994 (Qld) (MAIA).  The Plaintiff suffered injuries to her face and upper body when Reece Opbroek (First Defendant), threw a beer bottle at the vehicle in which she was a passenger (the Holden).  The glass struck the rear door of the Holden and smashed, then struck the Plaintiff.  When the First Defendant threw the bottle, he was driving a Mazda, with one hand on the steering wheel.

Issue

The issues for determination were whether the injuries, for the purposes of section 5 of the MAIA:

  1. resulted from the driving of the motor vehicle; and
  2. were ’caused by, through or in connection with a motor vehicle’.

Pleadings

In the Statement of Claim the Plaintiff alleged the First Defendant was negligent in the following respects:

  1. failing to exercise proper control over the Mazda to avoid injury to the Plaintiff;
  2. failing to avoid an accident;
  3. failed to drive the Mazda for lawful purposes;
  4. driving the Mazda so that it could be used to position himself to throw a bottle at the Holden; and
  5. positioning the Mazda so he could throw the beer bottle at the Holden in contravention of s 26(1)(a) of the Summary Offences Act 2005 (Qld).

Submissions

The Second Defendant, AAI Limited, made submissions as follows:

  • there was nothing relating to the driving of the vehicle, that would trigger sub-sections 5(1)(a) and (b) of the MAIA.  There needed to be “some wrongful act with respect to the driving, not simply the release of the bottle”.
  • the allegations of negligence pleaded by the Plaintiff did not accord with the Statement of Agreed Facts.
  • there was no factual basis upon which the Court could make any finding, either directly or inferentially, that would identify some relevant fault on the driver.

The Plaintiff made submissions as follows:

  • the injury was ’caused partly by a wrongful act in respect of the control of’ the Mazda.
  • the driving was fundamental to the injury because the First Defendant maintained control of the vehicle in such a way as to allow him to throw the bottle by holding the steering wheel with one hand and throwing with the other hand.
  • the ‘manner’ of driving was a ‘wrongful act’ in that the ‘controlling’  of the vehicle was to ‘effect a tortious act’ which ‘led’ to injury.

There was no real contest that the bottle was thrown ‘by, through or in connection with’ the Mazda.

Findings

Dorney QC DCJ found that:

  1. the injuries were a ‘result’ of the driving of the motor vehicle.
  2. there was no link between the motor vehicle and any wrongful act on the part of the Second Defendant (which is simply pleaded as ‘negligence’) because no negligent act was set out in the agreed facts.

The Court dismissed the Plaintiff’s application.

Considerations

The case serves as a reminder for parties to consider whether the legislation that a claim is brought under, does in fact apply to that claim.

In this case, the agreed facts failed to establish a wrongful act and negligence relating to the driving of the vehicle, so the Plaintiff’s claim was excluded by the MAIA.

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Kate DenningProjectile case not regulated by motor accident legislation
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Insurer required to fund rehabilitation despite DNA evidence

Case note: Lee v RACQ Insurance Limited [2015] QSC 120

CTP Lawyers Brisbane – CTP Law Changes – Care for accident rehabilitation – Motor vehicle accident rehabilitation – MAIA – Motor Accident Insurance Act – Reasonable suspicion of fraud

Overview

Mr Lien Yang-Lee (Applicant) made application to the Supreme Court of Queensland for an injunction to prevent compulsory third party (CTP) insurer, RACQ Insurance Limited (Respondent), from ceasing to provide rehabilitation, under the Motor Accident Insurance Act 1994 (Qld) (MAIA).

The Applicant was badly injured in a head-on motor vehicle accident.  The Applicant brought a claim against his father, the alleged driver of the vehicle in which he was travelling.  The Respondent was the CTP insurer of that vehicle.

Because of the Applicant’s youth and severe disabilities, the Respondent agreed to fund rehabilitation in accordance with section 39(1)(a)(iv) of the MAIA.  The Respondent funded around $200,000 in rehabilitation.

The Respondent’s claim manager had concerns about the circumstances of the accident.  The police report noted an issue as to who was driving.  As police investigations advanced, it was revealed that blood all over the driver’s side airbag belonged to the Applicant – not his father.  A late-comer to the scene saw the Applicant’s father attending to the Applicant.  That bystander noticed that the Applicant had a lot of blood on his face.

The police concluded that the Applicant was driving the vehicle.

Issue

The issue to be determined was whether the Applicant should be granted an injunction to prevent the Respondent from refusing to fund rehabilitation.  The evidence before the Court was hearsay.

Findings

In a judgment delivered on 7 May 2015, Dalton J found as follows:

  1. The Applicant demonstrated a case at first instance.  The Applicant’s family had sworn affidavits that he was not driving the car.
  2. Further rehabilitation may assist the Applicant.  That weighed most heavily against the money that would be lost to the Respondent, if the Respondent ultimately established fraud.
  3. The Application was successful and the Respondent was enjoined from reducing any rehabilitation under the MAIA.

Considerations

Despite ‘quite strong circumstantial evidence of fraud’ and the fact that funding of rehabilitation under the MAIA is voluntary, the Respondent couldn’t reduce its funding of rehabilitation to the Applicant.  That rehabilitation was estimated at approximately $40,000 per month.  The Applicant had no assets and offered no security to the Respondent.

Insurers should have regard to this judgment before agreeing to fund rehabilitation ‘on a without prejudice basis’ under the MAIA.

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Kate DenningInsurer required to fund rehabilitation despite DNA evidence
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‘Following car’ 75% to blame for unsafe overtaking manouevre

Case note: Veyt v Stevenson & Anor [2015] QDC 84  

CTP Lawyers Brisbane – CTP Law Changes – Truck Accident Qld – MAIA – Motor Accident Insurance Act – Truck Accident Lawyer – Motorcycle Accident Lawyer

Facts

The Plaintiff, Mr Gilbert Veyt (Veyt), a 51 year old motorcycle rider, was attempting to overtake a truck, driven by the Defendant, Mr Lyle Stevenson (Stevenson).

Attempting to pass Stevenson’s truck, Veyt moved his motorcycle into an overtaking lane.  Ahead of the truck, was a bicycle.  All vehicles were travelling in a southerly direction on Stapylton-Jacobs Well Road, Queensland.

At the same time as Veyt was attempting to overtake Stevenson’s truck, Stevenson moved into the northbound lane, to provide a safe distance between his vehicle and the bicycle.

Veyt, unaware of why Stevenson’s truck had moved into the overtaking lane, attempted to abort his passing manoeuvre.  However, he lost control of his motorcycle and crashed onto the roadway.

Veyt alleged that Stevenson’s truck clipped his arm.  However, he gave inconsistent versions of the accident during his property damage claim.  An entry in the insurer’s records noted that Veyt said it was his motorcycle that actually clipped the back of the truck.

Issue for determination

Veyt alleged that Stevenson was negligent for (among other reasons):

  1. failing to observe the motorcycle was overtaking the truck.
  2. failing to indicate his intention to move into the overtaking lane.
  3. failing to exercise due care and skill in the management and control of the truck.

The insurer for Stevenson, CGU, defended the claim, alleging that Veyt had failed to keep a reasonable distance behind the truck, failed to keep his vehicle under control and failed to have regard for his own safety.

Findings

In a judgment handed down in the Southport District Court on 21 April 2015, the Court made these findings of fact:

  1. The truck driver used his indicators, was acting lawfully, was not speeding and checked his mirror before moving into the overtaking lane.  The court also found that he did not leave Veyt insufficient room to overtake and only entered the overtaking lane by a couple of metres.
  2. Veyt was, for the most part, travelling in the truck’s blind spot and failed to observe the truck’s indicators, probably because he was attempting to pass the truck at 90 km/hr.
  3. Stevenson’s truck did not come into contact with Veyt.
  4. Stevenson was only 20 to 30 metres away from Jensen before he activated his indicators.

The Court determined that the actions of both drivers contributed to the accident.  The Court said that Stevenson, as an experienced truck driver, should have known that there was a risk that a vehicle travelling behind, could be in his blind spot.  Because of this, he should have been more careful in checking his rear view mirrors before moving to the right.  Stevenson was also considered negligent for indicating his intention to move into the overtaking lane too late.

Given the findings of fact, the Court found that Veyt was negligent and considered an appropriate distribution of blame would be 25% to Stevenson (Defendant) and 75% to Veyt (Plaintiff).

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Kate Denning‘Following car’ 75% to blame for unsafe overtaking manouevre
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InDefence covers legal and technical issues in a general way. Changes in circumstances or the law may affect the completeness or accuracy of the information published. InDefence is not designed to express opinions on specific cases, to provide legal advice or to establish a relationship of client and lawyer between Denning Insurance Law and the reader, or any third party. No person should act or refrain from acting solely on the basis of this publication. You should seek legal advice particular to your circumstances before taking action on any issue dealt with in this blog.