Muller v Cherrie

[2000] QSC 330

SUPREME COURT OF QUEENSLAND

CITATION:

Muller v Cherrie & Anor [2000] QSC 330

PARTIES:

SHANE LINDSAY MULLER
(plaintiff)
v
BRENDAN RUSSELL CHERRIE
(first defendant)
MMI GENERAL INSURANCE LIMITED
(second defendant)

FILE NO:

SC No 16 of 2000 Maryborough

DIVISION:

Trial Division at Maryborough

PROCEEDING:

Civil Trial

DELIVERED ON:

27 September 2000

DELIVERED AT:

Brisbane

HEARING DATES:

16, 17 and 18 August 2000

JUDGE:

Atkinson J

ORDER:

Judgment is given for the defendants.

CATCHWORDS:

PERSONAL INJURIES – MOTOR VEHICLE ACCIDENT – action for negligence – where plaintiff has retrograde amnesia and led no other evidence – insufficient evidence to establish liability.

Adams v Hakoah Club Ltd Unreported, New South Wales  Court of Appeal No 40570 of 1996, 4 September 1997, referred to

Hampton Court Ltd v Crooks (1957) 97 CLR 367, referred to

Jones v Dunkel (1959) 101 CLR 298, applied

R v Edwards [1975] 1 QB 27, referred to

Rains v Frost Enterprises Pty Ltd [1975] Qd R 287, referred to
The King v Turner (1816) 5 M & S 206; 105 ER 1026, referred to

West v Government Insurance Office of NSW (1981) 148 CLR 62, applied

COUNSEL:

M J Byrne for the plaintiff
J B Rolls for the defendant

SOLICITORS:

Noel Woodall and Associates for the plaintiff
McInnes Wilson for the defendant

1. ATKINSON J:  This matter concerns Shane Muller who was injured in a motor vehicle accident when he was 26 years old.  It is admitted on the pleadings that a collision occurred on 23 April 1997 at about 7.50 pm at the intersection of the Bruce Highway and Enterprise St, Maryborough.  The plaintiff was driving his Suzuki motorcycle in a northerly direction behind the first defendant who was driving a Mitsubishi truck registration number 948ARD in the same direction along the Bruce Highway.  After the plaintiff commenced to overtake the first defendant’s vehicle a collision occurred between them.  It was admitted at trial that the headlight on the plaintiff’s motorcycle was illuminated.

1. An allegation by the plaintiff that the first defendant turned his Mitsubishi truck to the right towards Enterprise St is denied as is an allegation of negligence against him.  The particulars of negligence which are pleaded are that he drove without due care and attention, that he failed to indicate his intention to turn right, that he failed to keep a proper look out, and that he failed to stop, slow down or steer clear of the plaintiff’s motorcycle. 

1. The defendants who are Brendan Cherrie and his third party compulsory insurer, MMI General Insurance Limited, allege in their defence that the collision was caused or contributed to by the negligence of the plaintiff in driving without due care and attention, failing to keep a proper look out, travelling at a speed that was excessive in the circumstances, failing to slow down or steer clear so as to avoid collision with the first defendant’s motor vehicle, overtaking when it was unsafe to do so, overtaking the first defendant’s Mitsubishi truck when…