Van Muyen v The Nominal Defendant (Qld) - [2003] QCA 243

SUPREME COURT OF QUEENSLAND

CITATION:

Van Muyen v The Nominal Defendant (Qld) [2003] QCA 243

PARTIES:

SHERRY ELIZABETH VAN MUYEN
(plaintiff/appellant)
v
THE NOMINAL DEFENDANT (QUEENSLAND)
(defendant/respondent)

FILE NO/S:

Appeal No 10672 of 2002
SC No 8995 of 1998

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

6 June 2003

DELIVERED AT:

Brisbane

HEARING DATE:

15 May 2003

JUDGES:

Williams JA and White and Holmes JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs

CATCHWORDS:

TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – ACTIONS FOR NEGLIGENCE – EVIDENCE – ONUS OF PROOF AND SUFFICIENCY OF EVIDENCE – where appellant’s vehicle hit an embankment and rolled over while she was driving – where appellant had no recollection of events – where evidence of unidentified vehicle speeding in the general vicinity – whether appellant had established on the balance of probabilities that the unidentified speeding vehicle caused the accident

Jones v Dunkel (1959) 101 CLR 298, cited
La Compania Martiartu v Royal Exchange Assurance Corporation [1923] 1 KB 650, cited
Nesterczuk v Mortimore (1965) 115 CLR 140, cited
Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948, cited

COUNSEL:

D McMeekin SC with J W Lee for the appellant
S C Williams QC for the respondent

SOLICITORS:

Keith Scott & Associates for the appellant
Biggs & Biggs for the respondent

WILLIAMS JA: The appellant sustained injuries when the vehicle she was driving hit an embankment and rolled over whilst it was negotiating a curve to the right on the Rosewood-Laidley Road at about 8.10am on 16 December 1996. She sued the respondent asserting that the cause of the accident was the negligent driving of an unidentified motor vehicle. The appellant has no recollection of events subsequent to her commencing her journey from her home about five minutes before the accident. In consequence she could give no evidence implicating another vehicle as the cause of what happened.

At the trial evidence was led from a number of witnesses placing another vehicle in the general vicinity, travelling in the same direction as the appellant, at about the time the incident occurred. The trial judge was asked to infer from the evidence that that vehicle overtook, whilst travelling at excessive speed, the appellant as she was negotiating the curve and thereby caused her vehicle to leave the bitumen carriageway and ultimately roll over.

After a careful, detailed analysis of all the evidence the learned trial judge declined to draw that inference and in consequence the appellant’s action was dismissed. The ultimate reasoning of the learned trial judge is encapsulated in the following remarks at the end of her reasons:

“I am therefore not satisfied that it is the more probable inference that should be drawn from all the evidence that the departure of the plaintiff’s vehicle to the left of the road was caused by the overtaking of…

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.

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Details

Case: [2003] QCA 243
Decision Date: 6 June 2003

CaseChat Overview and Summary

The case of Van Muyen v The Nominal Defendant (Qld) involved a dispute concerning a motor vehicle accident where the appellant's vehicle hit an embankment and rolled over. The appellant, who had no recollection of the events leading to the accident, sought to establish that an unidentified vehicle, which was observed speeding in the vicinity, was the cause of her accident. The matter was brought before the court to determine whether the appellant had successfully discharged the onus of proof and presented sufficient evidence to establish the unidentified vehicle's role in the incident.

The central legal issue was whether the appellant had demonstrated, on the balance of probabilities, that the speeding unidentified vehicle caused her accident. The court needed to assess the sufficiency of the evidence presented by the appellant, including the eyewitness accounts of the speeding vehicle, and weigh them against the appellant's lack of memory regarding the incident. The court had to determine if the evidence was sufficient to establish the causative link between the speeding vehicle and the accident.

The court found that the evidence presented by the appellant did not sufficiently establish, on the balance of probabilities, that the unidentified speeding vehicle was the cause of the accident. The court concluded that the appellant had not discharged the onus of proof required to hold the unidentified vehicle responsible. The evidence of the speeding vehicle was not specific enough to establish causation, and the appellant's lack of recollection further complicated the ability to link the vehicle to the accident. Consequently, the appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs

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:	Van Muyen v The Nominal Defendant (Qld) [2003] QCA 243
PARTIES:	SHERRY ELIZABETH VAN MUYEN (plaintiff/appellant) v THE NOMINAL DEFENDANT (QUEENSLAND) (defendant/respondent)
FILE NO/S:	Appeal No 10672 of 2002 SC No 8995 of 1998
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	6 June 2003
DELIVERED AT:	Brisbane
HEARING DATE:	15 May 2003
JUDGES:	Williams JA and White and Holmes JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed with costs
CATCHWORDS:	TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – ACTIONS FOR NEGLIGENCE – EVIDENCE – ONUS OF PROOF AND SUFFICIENCY OF EVIDENCE – where appellant’s vehicle hit an embankment and rolled over while she was driving – where appellant had no recollection of events – where evidence of unidentified vehicle speeding in the general vicinity – whether appellant had established on the balance of probabilities that the unidentified speeding vehicle caused the accident Jones v Dunkel (1959) 101 CLR 298, cited La Compania Martiartu v Royal Exchange Assurance Corporation [1923] 1 KB 650, cited Nesterczuk v Mortimore (1965) 115 CLR 140, cited Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948, cited
COUNSEL:	D McMeekin SC with J W Lee for the appellant S C Williams QC for the respondent
SOLICITORS:	Keith Scott & Associates for the appellant Biggs & Biggs for the respondent