Would the real defendant please stand up?
April 26, 2013
On 23 July 2007, the plaintiff was riding a motorcycle behind a large cement mixer truck with a ‘Readymix’ badge. As he was following the truck around a corner near the Hope Island and Old Pacific Motorway intersection, a quantity of concrete slurry fell from the back of the truck onto the road.
The plaintiff lost control of the motorcycle as it slid into the concrete slurry. He suffered a fracture to his right wrist as well as some superficial injuries. The plaintiff maintained that he injured his lumbar spine. The truck that spilt the concrete did not stop. Nobody obtained a registration number.
The plaintiff was not sure who was responsible. He sued ten defendants in the proceedings, as well as the Nominal Defendant, in the event the identity of the vehicle could not be established.
A witness, Trevor Duncan, was working as a spare parts manager of an automotive shop near the accident site. He witnessed the accident whilst on his way to his car to go home from work and gave evidence the plaintiff’s motorcycle was travelling at a reasonable speed and not tailgating the Readymix truck. He recalled watching the Readymix truck travelling down the overpass and: “hearing the exhaust brake, I think, and looking up and seeing it going quite quick around the corner. It was quite a fast sweeping corner. I was thinking to myself ‘gee, that’s going pretty quick’.” Both Mr Duncan and the plaintiff gave evidence it was a large, six‑wheeler truck.
The plaintiff was 48 years old at the time of the accident. He was working as a subcontract carpenter, normally working 40 hours per week. He also had a part‑time antique furniture and restoration business, trading for about 12 hours per week on weekends.
Evidence was given by Gary Payne, who was working as a concrete allocator for Readymix at the time of the accident.
He provided evidence of detailed docket records for the day of the accident, recording the time, quantity, details of the customer, the delivery address and a computer calculated estimated distance to deliver to a particular work site. The first, second, fourth, fifth, six, seventh, ninth and tenth defendants were all drivers who had trucks filled with concrete just before or around the time of the accident.
The plaintiff gave evidence that he could not work for 6 months following the accident, and that he tried to return to his trade after six months (cabinet making and carpentry) but it was too painful on his wrist, so began undertaking ‘second fix duties’. He also stated he was unable to operate his antiques business for a few weeks following the accident and after he returned to the business, he sold off stock and undertook minimal restoration work, having to close the business in February 2008.
He reopened the antique business in January 2010, but it was not profitable. He closed the business in early 2012, filing for bankruptcy in February 2012.
The court found there was sufficient evidence to conclude that the driver of the truck drove negligently in allowing concrete slurry to discharge from his truck. The court found it was entirely foreseeable that a road user would be injured should there be such a discharge.
Having considered the evidence of Mr Payne, the court found on the balance of probabilities:
- The accident occurred after 4.00pm but the exact time could not be calculated
- All Readymix trucks using the nearby batching plant were identified by Mr Payne using the archived records
- The usual time required to load and leave the plant was eight minutes
- The last load of concrete to leave the batching plant was in truck number 6626 which would have left the batching plant at around 3.55pm or 4.00pm
- It was more likely that a truck with a load of concrete on board discharged concrete slurry than a truck which had already been unloaded, given the distance the trucks travelled to the job sites that day and the drying time of concrete
- All trucks would have discharged their loads by 4.00pm on 23 July 2007, and that the first defendant was the most likely truck to have been in the area at the relevant time
- The court was satisfied that by a process of elimination, the first defendant was more likely than not to have been the driver responsible for the accident.
The plaintiff had suffered a previous schapoid fracture as well as previous back injuries. The judge considered it significant that there was no documented complaint about the plaintiff’s back injury until 12 months after the accident. The court was not satisfied the back injury arose from the accident.
The question of the true extent of the plaintiff’s economic loss was problematic. The plaintiff’s post accident income did decrease during 2008, 2009 and 2010 but rose to the pre accident level in 2011. The court was not satisfied the total decrease in income in the earlier years was due to the wrist injury, given the pre‑existing back condition.
The court awarded $40,600 for past economic loss calculated as:
- $15,600 – six month period off work completely
- $5,000 – global for loss of antique business and
- $20,000 –loss during 2.5 years post accident.
For future economic loss, the court awarded $25,000 globally, to reflect a disadvantage in the future.
In total, the plaintiff was awarded $93,757.51.
This decision provides more evidence of a recent trend we have noticed in lower global awards for economic loss by Queensland courts.
The decision also evidences the court’s approach and reasoning, on the balance of probabilities, in identifying the tortfeasor when faced with a number of prospective defendants.
Mansi v O’Connor & Ors  QSC 336
Authored by Richard Clayton, Senior Associate, Brisbane.
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