IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION No. 39 of 1978 (Mackay Registry) BEFORE MR. ACTING JUSTICE HELMAN BRISBANE, 10 MARCH 1989 BETWEEN: COLIN DOUGLAS WATT and infants MICHAEL JOHN WATT and JAMES LAURIE WATT and TERRI LORENA WATT (infants who bring this action by their next friend COLIN DOUGLAS WATT) Plaintiffs - and - COLIN WILLIAM HODGKINSON, TERRENCE WILLIAM RICHARDS and THE NOMINAL DEFENDANT (QUEENSLAND) Defendants - and - FIRE AND ALL RISKS INSURANCE COMPANY Defendant LIMITED by election CORRIGENDUM Page Line Reads Should read 16 4 sold personal sole personal representative of the representative of the estate estate 16 40 Commission (1983) Commission (1983) 28 N.T.R., p.19). 28 N.T.R., 19). 21 29 The fourth plaintiff has, The fourth plaintiff has, then, suffered a great then, had a great deal deal of of fr;-~VISED-COP!.~SISS UED-! j Court Reprntln'.J Bureau ! 1 vate, / )/ .3 / ft-c; j r,,qO IN THE SUPREME COURT OF QUEENSLAND .() CIVIL JURISDICTION No. 39 of 1978 (Mackay Registry) . BEFORE MR. ACTING JUSTICE HELMAN Sc <is 1/o v BRISBANE, 10 MARCH 1989 10 _10 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) BETWEEN: COLIN DOUGLAS WATT and infants MICHAEL JOHN WATT and JAMES LAURIE WATT and 20 TERRI LORENA WATT (infants who bring this action by their next friend COLIN DOUGLAS WATT). Plaintiffs -and- COLIN WILLIAM HODGKINSON, 'TERRENCE WILLIAM RICHARDS and THE NOMINAL DEFENDANT (QUEENSLAND) 30 Defendants 30 -and- FIRE AND ALL RISKS INSURANCE COMPANY LIMITED Defendant by Election JUDGMENT 40 HIS HONOUR: This action arises out of a collision which 40 occurred on October 1, 1975 between a Holden station sedan registered-no. PDF-029 driven by the first plaintiff's wife and a Toyota Landcruiser motor vehicle registered no. OCU-168 driven by the second defendant. Mrs. Watt was killed in the 50 collision, as were three of her children who were passengers 50 in the station sedan. The second, third and fourth plaintiffs, also children of Mr. and Mrs. Watt, were other passengers in th ir car and were injured in the collision. The car was damaged. The first plaintiff claims damages for damage to his property I 60 ---------_j 60 G 214-Govt. Printer, Old. -1- (the car), for "loss of dependency", and damage sustained by the estate of his wife. The second, third and fourth plaintiffs claim damages for the personal injuries they suffered. I should record that at the beginning of the trial Mr. 10 Barbeler, for the third defendant, admitted that the relevant 10 notices of the claims had been received by his client. Notices claiming indemnity or contribution were delivered by the first defendant to the defendant by election (the insure1.· I I of the second defendant), by the third defendant to the ! 20 second defendant, and by the defendant by election to the 20 first and third defendants. During the addresses I was told that all defendant~ abandoned any allegation of contributory negligence on the part of the first plaintiff's wife. I shall now set out the facts of· the case as I find-them 30 to be. 30 At about 8.15 or 8.20 p.m. on the day I have mentioned, Mrs Watt was driving the station sedan in a northerly direction along the Bruce Highway between Sarina and Mackay, Queensland about 20 km south of Mackay and north of Sandringharn Creek. 40 40 The road there had a bitumen surface with two lanes, one northbound and the other southbound, separated by a broken centre line. It was a long level straight stretch of road with gravel shoulders and guide posts at the edge. The road is shown in the plan Exhibit 41. The gravel shoulder on the 50 50 southbound side of the road was not wide enough for a car to travel on. It was a fine night and the road was dry. There was good visibility in both directions. The speed limit in the area was 60 miles per hour and she was travelling at about 45 miles per hour in the northbound lane. 60 60 G 214-Govt. Printer, Qld. -2- At the time and place I have mentioned a dark coloured late model Holden or Falcon sedan overtook the station sedan by moving around it on the right and then travelling back towards the left crossing the centre line of the road a few car lengths ahead of the Watts' car. 'The dark sedan was then 10 straddling the centre line when it began to veer slowly right 10 again into the southbound lane. It continued north in the southbound lane. The lights of the second defendant's vehicle could then be seen approaching in the southbound lane. The dark sedan and the Landcruiser were on a collision course. The Watts' car was proceeding in the centre of the northbound 20 lane, the dark sedan a few car lengths ahead and on its right. Suddenly the second defendant moved to his right out of the path of the dark sedan and_into that of the Watts' car. A few seconds after that movement the collision took place with 30 the results I have mentioned. All three vehicles were lit. 30 Neither colliding vehicle slowed down before the collision. The dark sedan did not stop. The collision occurred, as I have indicated, in the northbound lane, and at a point about 150 yards north of the 40 40 Munbura turnoff. Both vehicles rose into the air. The Landcruiser landed on its side on the driver's side in the northbound lane, facing north. The Watts' car landed facing north in the southbound lane on its wheels. It was severely damaged in the front as far as the windscreen. 50 50 A police investigation of the incident took place. Photographs were taken of the scene and the vehicles, and plans prepared. The second defendant, who suffered head and neck injuries in the collision resulting in his being in the Base Hospital for four to six weeks, was interviewed by 60 60 '.G 214-Govt. Printer, Old. -3- police officers. He was unable to remember the incident although he remembered drinking beer before setting out on the Bruce Highway. His blood alcohol level was tested and found to be 126 milligrams of alcohol per 100 millilitres of -, -,f'\-,1"."' C.--.•• --1~..!-.'t- -r ------.i-~.:1- bluoci ai... 9.50 p.111. UH ()1_.;i...Ou~.L ..L/ ..L;J/J .- .l...LVlLL VV.L.LJ..V.L.L ..L VV.l.LV.LU.U.C 10 that at the time of the collision he was adversely affected by 10 alcohol. The Landcruiser was mechanically sound before the collision. The question now arises: Who was driving the dark sedan? At about 8.00 p.m. on October 1, 1975 the first defendant, 20 a boiler attendant at the power alcohol plant at Sarina who 20 lived at 46 Hamilton Street, North Mackay, was in the bar of Carlons Hotel, Sarina. He had been drinking beer at the hotel in the company of two workmates, a Mr. Allan Plant and the witness Mr. Wilfred Thomas Morphy, for at least two hours. 30 At about 8.00 p.m. the bar attendant, Miss Sandra Anne O'Brien, 30 observed him to be very unsteady on his feet, to be stumbling around the bar, and to be leaning on the bar - in short to be adversely affected by alcohol. He left the hotel soon after 8.00 p.m. He was a short, stocky man and was wearing a navy 40 40 blue cloth cap on his head. He owned a car, a dark green late model Holden Registered No. OCM-911, which had a gold coloured roof. At about 8.30 p.m. on October 1, 1975 Mr. David Harold Wilcox was watching television at his house in Evans Street, 50 50 Mackay. He heard a loud crash, went outside to investigate and saw a dark green late model Holden car stationary with its lights on near an electric light pole. The car reversed away from the pole, and then became stuck in a culvert in George Street. Mr. Wilcox followed the car on foot. When he arrived 60 60 G 214-Govt. Printer, Qld. -4- near it a man got out from behind the steering wheel. The man asked him to telephone his wife. Mr. Wilcox asked for the telephone number but the man could not remember the number and then asked Mr. Wilcox to help him push the car out of the culvert. Mr. Wilcox replied that the two 10 would not be able to push it out of the culvert: it would 10 be necessary to get a tow truck to do that. Mr. Wilcox told· him that they had better telephone the police. Another by-stander, a young person, went to telephone the police from a nearby shop. The man who had been behind the steering ~:?.O wheel of the car then staggered off across the road over a 20 railway line and away from the scene. He smelt strongly of liquor and his speech was slurred. He had a cloth cap on his head. Constables Reginald Thomas Ryan and Donald Robert McKenzie 30 30 came to the scene of the incident in George Street, Mackay. They saw the first defendant's car .in the culvert and later found the first defendant sitting near a tree in nearby Evans Street close to its intersection with Stein Street - about threeI I minutes' walk from where the car was.