WHODUNIT? The mystery surrounding a green truck, a rock and a knee injury!

04 February 2019

On 25 November 2014 at around 6:20am, Glenn Garside (the plaintiff) was hit by a rock-like object (the rock) while he was riding his motorbike on a highway in Emerald, Queensland.

He alleged that the rock flew off the top of a JJ Richards truck, bounced down the centreline of the road past an Emerald Coaches bus, and hit him in the right knee causing serious injuries (the accident).

The plaintiff could not definitively identify the driver nor the registration number of the truck. He therefore took a scattergun approach and issued proceedings against three named JJ Richards drivers (insured by QBE). QBE was also the CTP insurer for all JJ Richards trucks. QBE would therefore also be liable if the plaintiff was able to prove negligence by any JJ Richards truck. The plaintiff also sued the Nominal Defendant in case he could not establish it was a JJ Richards truck such that it was an unidentified vehicle.

In issue

The identity of the truck was in issue. QBE argued that the truck was not driven by one of the named JJ Richards drivers and could not have been any other JJ Richards truck. The Nominal Defendant argued that the truck was a JJ Richards truck and therefore was not “unidentifiable”. Both QBE and the Nominal Defendant also denied liability for the accident. They argued that negligence could not be established against the driver of the truck because a reasonable inspection would not have located the rock on the truck.

The quantum of the plaintiff’s claim was largely agreed. Only the plaintiff’s claims for past and future economic loss remained in dispute at trial.

The background

Evidence was given at the trial about the location of the alleged trucks at the time of the accident, the speed of those vehicles, the distances travelled on the date of the accident and the drivers’ usual systems of inspection.

Following that evidence, the Nominal Defendant conceded that the truck could not have been driven by any of the named JJ Richards drivers. The Nominal Defendant maintained however that the truck was an unidentified (or “rogue”) JJ Richards truck. They relied on the evidence of the plaintiff and the Emerald Coaches bus driver who both identified the truck as a JJ Richards vehicle.

The decision at trial

The trial judge held that negligence could be established against whoever was driving the truck because the driver failed to conduct a proper inspection which would have located the rock. It was foreseeable that an object could become lodged on the truck and fly off.

QBE’s argument that the truck was not any of the alleged JJ Richards trucks or a “rogue” JJ Richards truck was ultimately accepted by the trial judge. The case against QBE was dismissed. The trial judge found that the vehicle could not be identified – and therefore the Nominal Defendant was the responsible insurer. The trial judge did not accept the evidence of the plaintiff and the Emerald Coaches driver identifying the truck as a JJ Richards vehicle. The trial judge found that they had no reason to be paying attention to the signage on the truck nor would they have had a proper view of the truck at the time.

The plaintiff was 35 years old at the time of the trial. He was awarded $723,761.64 in damages including $532,656 for future economic loss based on the need for 20 hours of replacement labour on his farm for the next 30 years.

Implications for you

This decision outlines the court’s method in identifying the responsible tortfeaser when faced with two potential defendants.

The decision also highlights the need for defendants to analyse the credibility and plausibility of key witnesses in the context of directly competing evidence.

The Nominal Defendant has now appealed the decision. The appeal is likely to be heard mid this year.

Garside v Rohan & Ors [2018] QSC 295

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