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Written by Peter Carter

October 30, 2012

The insurer for an unidentified utility, unexpectedly stopped in the “slip lane”of the M1 Nerang-Broadbeach Rd exit, will pay $112k in injury compensation damages for a swerve-to-avoid accident in which a semi-trailer collided with a utility pole.
Despite the Nominal Defendant’s theory that Stephan Dryzyzaga had simply came off the motorway too fast and swerved into the pole to avoid the rig colliding with other vehicles also queueing to turn left – in the absence of any eyewitness accounts either way – the court accepted the plaintiff’s version.

That decided, the court also ruled, in its judgment published on Friday, that stopping in such a position amounted to “serious negligence on the part of the driver of the unidentified vehicle”.

The insurer also protested that there had been insufficient “inquiry and search” as required by s 31 (2) of the Motor Accident Insurance Act because Dryzyzaga had failed to promptly inform police and had prevented a timely police investigation.

This contention too was defeated, with the court accepting that any such action – because there was nothing distinctive about the utility or its driver, that the plaintiff was able to give – would “be obviously futile”.

“Unsurprisingly”, his later sleuthing attempts by advertising in a newspaper and a formal report to police, yielded no leads. Nevertheless, because the semi driver “took his eyes and attention of the road for longer than he should have in the circumstances”, he was held partly to blame – by a full 20%.

Accepting the views of orthopaedist Greg Gillett, the court found that the resulting thoracic and cervical spine injuries would pose a likely risk on the labour market for the 40-year-old plaintiff for which “future economic loss on a global basis” of $80,000, was allowed.

Total damages were assessed at $140k and judgment was awarded – after the 20% reduction – at $111,663.

Drzyzaga v Nominal Defendant [2012] QDC 323 Brisbane McGill SC DCJ published 26/10/2012

Categories: Personal Injury , Litigation & Law Practice

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