Carmichael v Welch & Anor
[2020] QSC 210 · Martin J
The plaintiff, a café worker aged 27, was riding a moped along Wickham Street in Fortitude Valley in wet conditions when she braked heavily and was thrown from the bike, injuring both wrists, her left leg and her hip. She later developed Complex Regional Pain Syndrome in her right arm. She claimed a car driven by the first defendant had crept into her lane, forcing her to brake, and sued the driver and the RACQ insurer. The driver said her car stayed stationary behind the give-way line and never entered the plaintiff's lane. The main dispute was whether the plaintiff had proved the accident was the driver's fault.
The judge found the plaintiff's account had changed over time and was unreliable, and accepted the driver's evidence that her car did not move into the plaintiff's lane. The judge decided the plaintiff most likely lost control by braking too hard for the wet conditions after changing lanes. The claim was dismissed. The judge assessed damages of about $284,000 in case the finding was later disturbed, but the plaintiff recovered nothing.
Incident & injury
Plaintiff riding a moped braked heavily and was thrown from the moped, allegedly in response to a vehicle creeping into her lane; no collision occurred
- Body regions
- Neurological, Wrist, Hand, Knee / lower leg, Hip (Right)
- Diagnoses
- Complex Regional Pain Syndrome (CRPS) type 1 of the right upper limb, right thumb and wrist sprains, left lower leg injury (resolved), left wrist injury (resolved)
- Incident date
- 21 August 2015
- Location
- Wickham Street, Fortitude Valley, Brisbane
Quick facts
- Date of judgment
- 17 July 2020
- Claim type
- MAIA
- Proceeding
- Trial
- Plaintiff outcome
- Unsuccessful
- Plaintiff age at injury
- 27
- Occupation
- Café worker Community & Personal Service Worker
- Liability
- Disputed
- ISV assessed
- 30 · Item 122, Schedule 4 Civil Liability Regulation 2014
- Total damages
- $0
Outcome
The court found the plaintiff had not established that her injuries were caused by the first defendant's negligence, accepting that the defendant's vehicle did not enter the plaintiff's lane and that the plaintiff lost control of her moped due to her own conduct. The action was dismissed, though the court assessed quantum at approximately $284,250 as a contingency.
Defendants (2)
Under the Motor Accident Insurance Act 1994 (Qld), the CTP insurer (RACQ Insurance Limited) is the actual payer of the judgment. The insured driver is named on the judgment but is not personally liable to satisfy it, the CTP policy responds.
1 Rebecca Louise Welch
Driver
- Judgment against this defendant
- $0
Heads of damage
| General damages | $64,450 |
|---|---|
| Future loss of economic capacity | $150,000 |
| Past care (Griffiths v Kerkemeyer) | $0 |
| Future special damages | $69,800 |
2 RACQ Insurance Limited
CTP Insurer
- Judgment against this defendant
- $0
Key issues
Carmichael v Welch & Anor [2020] QSC 210
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