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Written by Peter Carter

March 18, 2014

Before even arriving at the Robina Tavern for the birthday party, Terry Miles had been drinking at the Broadbeach Hotel.
By the time he had downed another eight schooners there with his brother Troy and friend Kenny, many would have given them up as smashed. Just before midnight, Troy and Kenny exited through the dimly lit carpark walking south – Terry following behind hurrying to catch up – all soon to arrive where the incident would erupt.

The green hatchback entered from Cheltenham Drive and cruised to the nearby bottleshop, snaking among the lines of cars still parked. Who started the altercation was a matter of argument. Brock Williams, his girlfriend Shari Anthony, her brother and his friend – all in the Festiva – insisted it was not them.

Either way, an exchange occurred with Troy – by far the most inebriated of the group – who spat or sprayed liquid into their car and over their clothes. That “despicable” conduct was to have violent consequences.

Minutes later, the Festiva cruised out from the bottle shop drive thru and rounded on the merry group.
This time a glass was thrown into the vehicle. Abuse was exchanged as those on foot came closer to the Ford. Terry who was standing to the front of the car – driver’s side and away at an angle – motioned to his friends to keep away.

Amongst all the commotion, Brock accelerated forward with wheels turned in Terry’s direction, striking him and driving over his legs. Emergency services arrived quickly.

Fast forward from that very brief encounter on the night of 14 January 2006, to the more sober surrounds of Brisbane’s Court of Appeal, where the evidence of the seven eye-witnesses was under the spotlight again last month.

In contest – as it was in the May 2013 trial that awarded Terry $750k in injury compensation – was Suncorp’s contention that Terry’s CTP win against driver Brock Williams should be blocked. Terry – they said – had stood “so close to and in front of the stationary hatchback”, refusing demands he move so the car could exit. He had moreover “placed his hands on the bonnet or the windscreen” shouting – they claimed – “you are not going anywhere”, but in more colourful language.

Not so, had said the trial court. “I find that the plaintiff was not using his body to stop the sedan before it moved off,” ruled Her Honour Justice Mullins. “There was continuous shouting but he did not hear any words of warning from the defendant that he should move out of the way”.

Suncorp also argued that Terry “contributed to his own injuries by reason of his intoxication” and should wear at least 25% fault under s 47 of Queensland’s Civil Liability Act. This too was defeated at trial as Terry’s blood-alcohol level was estimated by expert opinion at only 0.04 per cent.

“He was not affected by the alcohol he had consumed that evening to the extent his capacity to exercise proper care and control for his own safety was impaired”.The appeal judges dismissed Suncorp’s appeal and it must pay the agreed – but undisclosed – compensation for Terry’s injuries. Given his age of 22 years and the apparent seriousness of the resulting injuries, the parties had agreed on damages at $750k.

AAI Limited & Anor v Miles [2014] QCA 022 Brisbane Fraser JA and Gotterson JJA and Boddice J 21/02/2014

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