Contributed To Negligence Through Failing To Brake Earlier
Steven Nyholt sued the Nominal Defendant for damages for serious personal injuries sustained by him in the early hours of 6 April 1993 when a van being driven by him in a northerly direction along the Bruce Highway, left the Highway and overturned. Mr Nyholt was ejected from the van.
It was Mr Nyholt’s case that the incident occurred as the result of the negligence of the driver of an unidentified motor vehicle travelling in a southerly direction with the lights of the vehicle on high beam resulting in the loss of or impairment of the his version of the road ahead and, in consequence, the loss of control of the vehicle.
Damages were agreed upon in the sum of $4.75 million dollars.
Mr Nyholt suffered incomplete tetraplegia as a result of the accident and is confined to a wheelchair. He was born on 8 April 1971. He was 21 at the time of the incident. He left school in 1986 at Grade 10 and had worked for a number of employers before accepting the offer of a position with Arrows Express where he commenced in about April 1992.
His duties with this employer were to drive a Toyota Hi Ace van each evening from Townsville to Cairns delivering the newspaper, The Australian, which was printed in Townsville, to a number of places along the way. Mr Nyholt had been wearing a lap/sash seatbelt when he arrived at Gordonvale. He undid it to exit the vehicle and did not resume wearing it. He was not wearing a seatbelt when the accident occurred.
Mr Nyholt says that it commenced raining at Gordonvale and that it was raining heavily as he approached Edmonton. Mr Nyholt said that he was travelling at between 60 and 70 kilometres per hour and that as he approached the S bend he noticed a car coming in the opposite direction with it’s light on high beam.
He said in evidence that he could not say how far the vehicle was from him when he first saw it with it’s lights on high beam but said that at that point the lights did not have any effect upon him because it was before he had entered the S bend. He said “It wasn’t until I went around the corner, that’s when the high beam dazzled me”.
As he exited the S bend he took his foot off the accelerator and slowed down. He said that he was watching the left hand side of the road and that as the car came closer he touched the brakes and the vehicle left the roadway. He said that the combined effect of the lights on high beam and the heavy rain prevented him from seeing the centre line and he moved over to the left. He then touched the brakes “as the car was coming upon me” to slow down further and “that’s when I lost control of the van”.
It seems that the front passenger side of the van after leaving the road struck the bank of a gully which caused it to rotate on its long axis and at the same time overturn. It came to rest substantially on its roof and facing south. Mr Hyholt was ejected from the vehicle and was found a short distance from the vehicle.
The Supreme Court of Queensland found that the driver of the unidentified vehicle ought to have realised that the impact of the lights of his vehicle on high beam on an approaching driver would be to impair the capacity of the driver to drive safely, particularly given the adverse weather conditions and that in doing so, he was guilty of negligence which was a cause of the vehicle leaving the road and Mr Nyholt sustaining his injuries.
So far as Mr Nyholt’s alleged contributory negligence is concerned, it was apparent that he drove for a significant time after seeing the vehicle with it’s lights on high beam without taking any steps to reduce his speed. He acknowledged that he made no attempt to draw the attention of the driver of the approaching vehicle to the fact that his lights were on high beam by flicking his lights up and down because he said he was concentrating on the roadway.
He was guilty of contributory negligence which was a cause of his injuries. The Court also found that they were not satisfied that it was more probable than not that had Mr Nyholt been wearing a seatbelt, he would have sustained a significantly lesser injury.
The Court apportioned liability equally between Mr Nyholt and the driver of the unidentified vehicle and gave judgment to Mr Nyholt in the sum of $2,375,000.00 with costs to be assessed.
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