Park v Nam

[2023] QDC 140

DISTRICT COURT OF QUEENSLAND

CITATION:

Park v Nam & Anor [2023] QDC 140

PARTIES:

MINGYU PARK

(plaintiff)
v
SUWOO NAM
(first defendant)
and
ALLIANZ AUSTRALIA INSURANCE LIMITED
(second defendant)

FILENO:

DC No 1886 of 2021

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Brisbane

DELIVEREDON:

17 August 2023

DELIVEREDAT:

Brisbane

HEARINGDATE:

15 to 17 August 2022

JUDGE:

Sheridan DCJ

ORDERS:

1.   The claim by the plaintiff is dismissed.

2.   If the parties are able to reach agreement as to costs, a consent order signed by the parties be filed by 4:00 pm Friday, 1 September 2023.

3.   If the parties cannot reach agreement as to costs:

(i)      the plaintiff file submissions, of no more than four pages in length, excluding any attachments, by 4:00 pm Friday 8 September 2023;

(ii)      the defendants file submissions, of no more than four pages in length, excluding any attachments, by 4:00 pm Friday 15 September 2023; and

(iii)      the plaintiff file any submissions in reply, of no more than two pages in length, by 4:00 pm Wednesday, 20 September 2023.

CATCHWORDS:

TORTS – NEGLIGENCE – where plaintiff was a passenger in a vehicle being driven by first defendant – where second defendant is insurer of the first defendant’s vehicle – where first defendant collided with a dead cow in the middle of the roadway – where plaintiff alleges to have suffered injuries as a result of collision – whether collision was caused by

negligence of first defendant – whether plaintiff sustained injuries as alleged or at all

LEGISLATION:

Civil Liability Regulation 2014 (Qld)

CASES:

Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301

Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413

COUNSEL:

Andrew Stobie for the plaintiff Richard Lynch for the defendants

SOLICITORS:

Rin Kim Law for the plaintiff

McInnes Wilson Lawyers for the defendants

Introduction

1. On the night of 1 May 2020, the plaintiff (Mr Mingyu Park) was a passenger in a vehicle being driven by the first defendant (Mr Suwoo Nam) when it collided with a dead cow lying in the middle of the roadway.

1. The second defendant, Allianz Australia Insurance Limited, is the insurer of the first defendant’s vehicle.

The Plaintiff’s Pleaded Case

1. Mr Park alleges that as a result of the vehicle (a Nissan Tiida) colliding with the cow, he suffered injury to his cervical, thoracic and lumbar spine, left knee and post- traumatic stress disorder and that he continues to suffer from symptoms of the injuries.

1. Mr Park bases his claim on his injuries having been caused by the negligence of the first defendant in:

   (a)failing to activate the high beam of the Tiida’s headlights;

   (b)travelling at excessive speed, particularly in relation to his ability to perceive the road surface ahead of him;

   (c)driving without due care and attention;

   (d)failing to keep a proper lookout; and

   (e)failing, or failing sufficiently to slow his vehicle when he perceived the Eclipse [a vehicle being driven in the opposite direction] to travel in an erratic manner.