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15 January 2019

Bricks, Knees, Bikes and Trucks

In a recent decision of His Honour Justice Davis, of the Rockhampton Supreme Court, the Nominal Defendant was ordered to pay not only the costs of a successful injured plaintiff on an indemnity basis but also the standard costs of the other four defendants who successfully defended the plaintiff’s claim.

Glenn Garside suffered a serious injury to his knee whilst riding his motorcycle along the Gregory Highway from Emerald to Capella on 25 November 2014.

Mr Garside was struck by an object described as about half the size of a brick that had fallen from a truck.

Mr Garside believed that the truck from which the object fell was one operated by JJ Richards and Sons LTD (“JJ Richards”). Although the truck did not stop and its registration number was not taken, Mr Garside commenced a claim against the three drivers of the JJ Richards trucks operating out of its Emerald depot and which had travelled north on that day and were therefore thought to be in the vicinity. The claim also included defendants, QBE Insurance (the CTP insurer for the entire JJ Richards Qld truck fleet) and the Nominal Defendant in the alternative that the truck was not a JJ Richards truck and hence unidentified.

At trial, Mr Garside pleaded his case in the alternative, that being:

  • the responsible truck was one driven by one of the three named JJ Richards employees and, therefore, QBE was liable; or
  • the responsible truck was a JJ Richards truck but not one driven by one of the three named JJ Richards employees and, therefore, QBE was liable; or
  • the truck was not a JJ Richards truck but was one that cannot be identified and, therefore, the Nominal Defendant was liable.

QBE and the three named JJ Richards employees pleaded in their Defences that any truck from which the object fell and injured Mr Garside was not one driven by any of the three named employees and was not otherwise a JJ Richards truck.

The Nominal Defendant pleaded in its Defence that the truck from which the object fell was one of the JJ Richards trucks driven by its three named employees and was therefore identified.

There were no cross proceedings or claims for contribution between QBE/the three named JJ Richards employees and the Nominal Defendant.

Whilst Mr Garside and the driver of a coach travelling behind him gave evidence that the object had fallen from a JJ Richards truck, His Honour found that the truck could not be identified. Although His Honour found both Mr Garside and the driver of the coach to be honest witnesses, he found that the coach driver’s evidence was corrupted somewhat by the fact he had been told by investigating police and staff of his employer that the trucks operator was suspected to be JJ Richards. His Honour found that information had come from Mr Garside.

At trial, His Honour gave judgement for Mr Garside against the Nominal Defendant and then sought the parties’ submissions as to costs.

The Nominal Defendant sought to avoid a Bullock or Sanderson order that it pay the costs of the four successful defendants (i.e. QBE and the three named JJ Richards employees), relying heavily upon the decision of the New South Wales Court of Appeal in Dominello v Dominello and Anor; Dominello v The Nominal Defendant and Anor (No 2) [2009] NSWCA 257.

Mr Garside sought to distinguish Dominello given the claims against the respective defendants in that matter were not raised in the alternative but were, rather, separate and distinct breaches of duty against each defendant.

His Honour differentiated Dominello from the claim brought by Mr Garside as Mr Garside had only pursued one cause of action, being negligence against the driver of the truck from which the object fell as alternative liability against either QBE and the three named JJ Richards employees or the Nominal Defendant.

His Honour found that, in the circumstances, Mr Garside had correctly pursued claims against not only QBE and the three named JJ Richards employees but also against the Nominal Defendant, given the uncertainty as to the identity of the trucks owner.

His Honour further found that the Nominal Defendant had clearly engaged with QBE and the three named JJ Richards employees by positively pleading that the truck was one driven by one of the three named JJ Richards employees and, in advancing both that case and the wider case, that the truck may have been some other JJ Richards truck.

In finding that Mr Garside’s claim was a case of alternative liability, His Honour distinguished Dominello and found that the Nominal Defendant had sought to avoid liability by attempting to identify the truck as one insured by QBE (i.e. either driven by one of the three named JJ Richards employees or another of JJ Richards trucks), therefore satisfying one of the requirements for a Bullock or Sanderson order.

In the circumstances, His Honour ordered that the Nominal Defendant pay not only the plaintiff’s costs of the proceedings on an indemnity basis but also that it pay the costs of QBE and the three named JJ Richards employees on a standard basis.

The case highlights both the need to properly identify and pursue relevant defendants to a claim and the circumstances in which a pleading of alternative liability may give rise to the added cost protection of a Bullock or Sanderson order.

Read the initial decision here: Garside v Rohan & Ors [2018] QSC 295

Read the second decision concerning costs here: Garside v Rohan (No 2) [2018] QSC 313

 

 


Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).

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