Van Muyen v Nominal Defendant (Qld)

SUPREME COURT OF QUEENSLAND

CITATION:	Van Muyen v Nominal Defendant (Qld) [2002] QSC 344
PARTIES:	SHERRY ELIZABETH VAN MUYEN (plaintiff) v THE NOMINAL DEFENDANT (QUEENSLAND) (defendant)
FILE NO:	S8995 of 1998
DIVISION:	Trial Division
DELIVERED ON:	25 October 2002
DELIVERED AT:	Brisbane
HEARING DATE:	16 and 17 September 2002
JUDGE:	Mullins J
ORDER:	The proceeding is dismissed.
CATCHWORDS:	Clark v Ryan (1960) 103 CLR 486 Doney v The Queen (1990) 171 CLR 207 Eaton v Nominal Defendant (Qld) (1995) 21 MVR 357 R v Faulkner [1987] 2 QdR 263 Hofer v Miller [1957] SASR 41 Westlake v Motor Vehicle Insurance Trust [1960] WAR 83
COUNSEL:	DVC McMeekin SC and JW Lee for the plaintiff SC Williams QC and PD Lane for the defendant
SOLICITORS:	Keith Scott & Associates for the plaintiff Biggs & Biggs for the defendant

1. MULLINS J:  Mrs Sherry Elizabeth Van Muyen (“the plaintiff”) was injured when her blue Ford Laser motor vehicle which she was driving on 16 December 1996 at about 8.10am in an easterly direction along Rosewood-Laidley Road went off the road, changed direction, hit an embankment on the other side of the road, rolled and came to rest almost facing in the direction from which the vehicle had travelled.

1. The plaintiff has no recollection of events preceding the accident subsequent to her placing some goods in the vehicle, before she commenced her journey from her home about 5 minutes before the accident.  From the investigations undertaken by her solicitors, the plaintiff believes the accident was caused by an unidentified motor vehicle forcing her off the road which resulted in her losing control of her vehicle.  The plaintiff has therefore sued The Nominal Defendant (Queensland) (“the defendant”).  Quantum was agreed between the parties at the commencement of the trial.  Liability remains in issue.

Witnesses

1. The plaintiff gave evidence herself and called Mr Stuart Forsyth who was formerly the sergeant of police at Rosewood Police Station and who attended the accident, Mr Phillip Forrest and Mrs Lesley Forrest who were travelling in their vehicle in the same direction that the plaintiff had been travelling and stopped at the accident, Mr Kevin James Chant who was visiting a friend whose residence was not far from where the plaintiff’s car came to rest and her husband Mr Jan Van Muyen.  The plaintiff also relied on the evidence of engineer Mr Ken King who specialises in analysis of traffic accidents and who prepared two reports (Exs 1 and 2) in respect of the accident in respect of which objection to their admissibility was made by the defendant. 

1. The defendant called engineer Dr Frank Grigg who also specialises in accident investigation and analysis and whose report on the accident was Ex 22.  The defendant also called Laidley builder, Mr Neil Dennien, who on the morning of the accident was travelling with his wife and children in his vehicle from Laidley to Ipswich and stopped at the accident.  The defendant relied on evidence from the plaintiff’s general medical practitioner…