July 27, 2014

A judges’ decision to refuse personal injury compensation to a jogger who collided with an SUV in suburban Kallangur has been ruled by three appeal judges, as illogical and unreasonable.
The accident occurred at around 6.00 am when defence worker Tanya Walker was on her morning jog.
Running down the Marsden St sidewalk and approaching Ann Street, the SUV driven by Michael Symonds came alongside.

Seconds later, she rounded the intersection to the left and ran on about 10 metres, to a crossing.
Vigilant against traffic movements,  Walker noted Symonds still stopped at the corner with no indicator flashing and its wheels pointing straight ahead.

She moved off the footpath at a slow jog across Ann Street, took three or four steps and slammed into the side of  Symonds’ passing utility at the point of its wing mirror. The trial judge ruled in Symonds’ favour with respect to the wheel direction: they were likely angled left, in his opinion.

Having come to a conclusion on one factual issue, he decided – with no explanation – that all factual issues should on that basis, be resolved against Walker in favour of Symonds. This was notwithstanding that Symonds conceded that he had not kept a proper lookout and had he done so, he would have seen the runner.

This was wrong according to the Court of Appeal.

“There is nothing in the judgment which reveals why the judge took the view he did of the contested issues,” ruled Justice Jean Dalton in delivering the appeal court’s lead judgment. “Whether the indicator was on; whether Symonds asserted to Walker that the indicator was not on; what response, if any, was made, and whether an apology was made”.

The fact that Walker was mistaken about one matter did not mean she was necessarily mistaken about all other matters.

The appeal judges sent the matter back for re-trial in the District Court both as to liability as well as quantum. If not resolved by agreement sooner, the matter is likely to come back before the court by year’s end for a full re-trial.

Walker v Symonds & Anor [2014] QCA 148 Holmes JA and Atkinson and Dalton JJ 20/06/2014

Categories: Personal Injury , Litigation & Law Practice

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