Written by Peter CarterDecember 3, 2012
The only description of a vehicle at fault for a motorcyclist brought down as he rounded a bend to join the Pacific Highway at Coomera was that is was a big cement truck.
No one could identify the vehicle itself but reliable eyewitness testimony – from the spare parts manager of an automotive shop located on the corner who saw the entire event as he walking to his car to leave for the day – established it to have been a concrete truck most likely having departed the nearby Readymix batching plant only minutes earlier.
His account was that the preceding cement truck travelling at speed, spilled part of its load causing the rider to slide, lose control and crash.
Investigations by the rider’s solicitors arrived at a list of six ‘loads’ that had been completed at the nearby plant within the 45 min preceding the accident on 23 July 2007, all verified by “tickets”. Some were large “six-wheelers” – as the eyewitness had testified the miscreant to have been – while others were of a smaller variety.
With no owner admitting their vehicle as the perpetrator, the plaintiff issued a lawsuit against all six and for good measure, included the “Nominal Defendant” – the government “insurer” for unidentified vehicles – in case none of the six proved to be responsible.
In the end her honour was satisfied that the truck must have come from the Readymix plant – not one of the three others within a 50 km radius – and that most likely it had departed there within the preceding 10 minutes. By a process of elimination, 5 trucks were progressively counted out, leaving only one against which judgment was entered for damages assessed at a very modest $94,000.
And because there was no “unidentified vehicle”, the Nominal Defendant bore no share of the damages liability. When it came to awarding legal costs, the court said it was entirely reasonable for plaintiff Giovanno Mansi, to have joined all seven potential parties into the claim, in the way that he had.
QBE – as CTP insurer for the spill-over truck – was ordered to pay the damages, Mansi’s legal costs and those of all the other defendants as well, but only up to a point. Because the plaintiff had “unreasonably” refused a $400,000 payment offer from the defendants – more than four times what the court ultimately awarded – just one week before the trial began, the court ordered that he must pay all of the defendants’ costs from the date of that offer, including all of their costs of the 3-day trial.
With a further sting in the tail, QBE is allowed to “set off” the damages and costs it must pay to Mansi, against what he owes them for their trial costs.