January 8, 2014

A German backpacker who stayed close to his broken-down van after it rolled to a stop at night, in the middle of the busy Bruce Highway, should himself be responsible for serious head injuries that came when a freight truck smashed into it minutes later.
Suncorp – the CTP insurer for the truck – claimed Johannes Habig had taken his life into his own hands by “knowingly travelling” in a Toyota Hiace van “which was in a dangerously unreliable condition”. Companions Elisa Mann and Corinna Brichta, also German tourists with little English language proficiency, had paid $3,400 for the van in Sydney. Habig joined them for the trip north.

Twice they called out a mechanic to get moving. The first time, at Rainbow Beach where local auto-man Mick Youngman pointed to the starter motor: “It needs a new one but I can try a fix if you don’t want the expense of the new part”.

Taking the cheaper option set them up for Suncorp’s contention that the trio recklessly defied the risk of a sudden mid-highway engine stall that could result in a catastrophic collision from following traffic, as in fact occurred.

A neat but ultimately, flawed argument. The known problem with the Hiace was that it was sometimes difficult to start – not that it conked out unpredictably – and mechanical investigation couldn’t pinpoint the defect that had stalled it just south of Proserpine.

Second, the insurer claimed Habig should have deserted the broken down van immediately after it stopped; or should have attempted to push it off the road. By not doing so, he bore the greatest share of responsibility for the collision and therefore, his injuries.

The wildcard was that there was no evidence as to exactly where Habig was positioned at the time of the collision or what he was doing. He couldn’t remember, Elisa had left for home weeks earlier and Corinna who was presumably uninjured in the smash, was not called. There were three eyewitnesses, but none could say where he was or even if he had been the driver.

Truck driver Ian McRae was found responsible for not paying sufficient regard to potential hazards on the roadway ahead, mainly because he allowed himself to be distracted by a 4WD, stopped on the opposite side of the highway with headlights blazing.

And despite evidence from 4WD driver Peter Sivyer – a truck driver of 25 years’ experience – that he had pulled over to shout to the tourists a warning to push the van clear, the court accepted the prudent course for Habig would have been to quickly abandon the vehicle.

For his failure to do so, Habig was held 50% responsible for the resulting collision and his injuries.
His loss for the medical and economic consequences – agreed by the insurer at $800k – was therefore halved by the court, to $400k.

Habig v McCrae & Ors [2013] QSC 335 Brisbane Henry J 6/12/2013 

Categories: Personal Injury , Litigation & Law Practice

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