Murray v Nominal Defendant - [2014] QDC 144

DISTRICT COURT OF QUEENSLAND

CITATION:

Murray v Nominal Defendant [2014] QDC 144

PARTIES:

NEVILLE LESLIE MURRAY
(plaintiff)

v

NOMINAL DEFENDANT
(defendant)

FILE NO/S:

1502/13

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

23 June 2014

DELIVERED AT:

Brisbane

HEARING DATE:

30 April, 1 & 2 May 2014

JUDGE:

Farr SC DCJ

ORDER:

The claim is dismissed.

CATCHWORDS:

MOTOR VEHICLE ACCIDENT - NOMINAL DEFENDANT – rear end collision at drive-thru- application of Motor Accident Insurance Act 1994- requirement of proper inquiry and search – where requirement not satisfied- where claim dismissed.

MOTOR VEHICLE ACCIDENT – PERSONAL INJURIES- QUANTUM – application of AMA Guides Fifth Edition –where degree of impact was minor – where evidence of defendant Orthopaedic Surgeon preferred- where amount awarded would have been limited to $1,000.00.

COUNSEL:

A J Williams for the plaintiff

R Dickson for the defendant

SOLICITORS:

Slater & Gordon for the plaintiff

Moray & Agnew for the defendant

Nature of claim

The plaintiff’s action is for personal injuries, loss and other damage allegedly suffered as the result of a rear end motor vehicle accident which is said to have occurred on 22 August 2011 in the drive-thru lane of a McDonald’s fast food restaurant at Springwood.

Summary of plaintiff’s case regarding incident

The plaintiff claims that at about 9.46 p.m. on 22 August 2011 he was seated in the driver’s seat of a white Nissan Maxima motor vehicle with his wife in the front passenger seat beside him. Their vehicle was stationary in the drive-thru lane with the rear wheels of the car sitting on top of a speed bump that traversed the lane. The plaintiff was looking diagonally to his right at the menu board and had his foot on the brake at all relevant times.

Whilst in that position the plaintiff said that he heard the sound of an engine revving loudly, coming from somewhere behind him, although there was no car in the drive‑thru lane behind his vehicle at that time. That sound ended as quickly as it had started, but some short undefined time later the plaintiff’s vehicle was struck from behind, causing it to move forward off the speed bump. The speed bump was less than 3” high.[1]
[1]Transcript p 1-36 line 35; Ex 5.

The plaintiff’s wife, after being told by the plaintiff that they had been struck from behind, immediately exited her vehicle and walked to the rear of it. At that time the vehicle which had struck hers was approximately one metre away. Mrs Murray could see no damage to her vehicle but noted that the front number plate of the other car had been crushed in such a way that it was impossible to read that vehicle’s registration number. She said that the positioning of that number plate coincided with the positioning of the towbar on her car and that she formed the immediate belief that the towbar had caused the damage to the number plate.

The other driver, a male, also exited…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Murray v Nominal Defendant

Details

AGLC: Murray v Nominal Defendant [2014] QDC 144
Case: [2014] QDC 144
Decision Date: 23 June 2014

CaseChat Overview and Summary

Murray sued an unnamed defendant over a motor vehicle accident that occurred at a drive-thru. The dispute involved the application of the Motor Accident Insurance Act 1994, specifically the requirement for a proper inquiry and search to identify the responsible party. The court was tasked with determining whether the plaintiff had satisfied this requirement and, if not, whether the claim should proceed against a nominal defendant. Additionally, the court needed to assess the extent of the plaintiff's injuries and determine an appropriate compensation amount.

The court found that the plaintiff had not adequately identified the driver of the vehicle that caused the accident, and therefore, the requirement for a proper inquiry and search was not met. As a result, the claim was dismissed against the nominal defendant. In evaluating the plaintiff's injuries, the court considered the evidence presented by both parties, ultimately preferring the opinion of the defendant's orthopaedic surgeon. Given the minor degree of impact and the evidence provided, the court concluded that the appropriate compensation would have been limited to $1,000.00.

The court dismissed the claim, finding that the plaintiff had not satisfied the statutory requirement to identify the responsible party. The court also noted that even if the claim had proceeded, the compensation amount would have been limited to $1,000.00 due to the minor nature of the injuries. The final order was that the claim against the nominal defendant be dismissed.

Orders

Orders of the court

The claim is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Murray v Nominal Defendant [2014] QDC 144
PARTIES:	NEVILLE LESLIE MURRAY (plaintiff) v NOMINAL DEFENDANT (defendant)
FILE NO/S:	1502/13
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	23 June 2014
DELIVERED AT:	Brisbane
HEARING DATE:	30 April, 1 & 2 May 2014
JUDGE:	Farr SC DCJ
ORDER:	The claim is dismissed.
CATCHWORDS:	MOTOR VEHICLE ACCIDENT - NOMINAL DEFENDANT – rear end collision at drive-thru- application of Motor Accident Insurance Act 1994- requirement of proper inquiry and search – where requirement not satisfied- where claim dismissed. MOTOR VEHICLE ACCIDENT – PERSONAL INJURIES- QUANTUM – application of AMA Guides Fifth Edition –where degree of impact was minor – where evidence of defendant Orthopaedic Surgeon preferred- where amount awarded would have been limited to $1,000.00.
COUNSEL:	A J Williams for the plaintiff R Dickson for the defendant
SOLICITORS:	Slater & Gordon for the plaintiff Moray & Agnew for the defendant