Muller v Cherrie & Anor [2000] QSC 330

[2] 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.

[3] 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 at all material times it was indicating its intention to turn right, and overtaking at an excessive speed.

[4] The serious injuries suffered by the plaintiff as a result of the collision are also denied by the defendants but it is clear and it was not disputed at trial that the plaintiff was seriously injured in the collision.

[5] However, for the defendants to be held liable for the plaintiff's injury the onus is on the plaintiff to show on the balance of probabilities that the first defendant was negligent and that his negligence was responsible in whole or in part for the collision. This the plaintiff has been unable to do. He is unable to recall the circumstances of the accident nor was he able to produce any other evidence which tended to show that the first defendant had been negligent and that that negligence caused the plaintiff's injuries.[1]

[6] Photographs taken in about June 1997 show that the road where the collision occurred is paved and straight with good visibility. On the eastern side of the highway there is a T-junction with Enterprise Road. Opposite the T-junction there is an overtaking lane on the western or left hand side of the Bruce Highway heading north.

[7] Mr Muller said in evidence that he would not have acted so stupidly as to attempt to overtake a truck which was indicating its intention to turn right. Unfortunately, this is insufficient to show that the collision occurred in circumstances where the first defendant's negligence caused the collision. The court would have to infer that the first defendant must have driven negligently and to infer that the plaintiff had not made a mistake or behaved recklessly on this occasion. This conclusion was not open on the evidence. The evidence reveals no basis for finding negligence on the part of the first defendant. This is a case in which the plaintiff is required to prove a positive so the onus of proof does not shift to the defendant.[2]

[8] Mr Muller's evidence was that he was driving a GSX 1100R Suzuki motorcycle, which he described as "one of the biggest road bikes you could ever ride". It is a motorcycle used for racing. He used to engage in riding and competing in motor-cross, riding and racing jet skis, rugby league and shooting. He told Helen Coles that his nickname was "Mad Muller".

[9] At about 6pm on 23 April 1997, he left Conondale heading north towards Blackwater. He stopped at Gympie for something to eat. He did not drink with his meal. He was carrying marijuana on him which he had bartered in return for work with his bobcat and which he intended to smoke later. He left Gympie a little after 7pm, planning to stop for a night in a hotel in the Childers area. He recalls passing the showgrounds in Maryborough, which is about 4-5 kilometres from the site of the collision, when he was reminiscing about events that happened there a couple of years previously. He cannot remember anything from then until after the collision with the defendant's truck occurred. He cannot remember overtaking the truck nor the collision. He gave evidence that he cannot remember seeing any lights or indicators on the truck but that is unreliable as his last memory of the truck is when he saw it ahead of him at the showgrounds. It appears that, whether because of suffering concussion or for some other reason, he suffers from retrograde amnesia and so is unable to remember the circumstances of the collision.

[10] As to his usual behaviour, Mr Muller appeared to be a very angry, disinhibited, impatient and impulsive person. Some of his mood swings can be related to the injury, his loss of memory of the collision and his loss of self-esteem, but he was an angry and impulsive person before his injuries. As Dr Mulholland, a psychiatrist who examined him for the purpose of this case at the request of his solicitors, concluded "from a psychological aspect the main issues are those of an angry and depressive nature which are partially accident related and partially not accident related". His diagnosis was that Mr Muller had "an adjustment disorder of unspecified nature with mixed features of anger and depression". Dr Mulholland said he regarded the accident as being the trigger or precipitating factor for this adjustment disorder, which could be regarded as being about half accident related and about half related to other factors and pre-existing factors. Dr Mulholland was able to observe from his history that he has long had a problem with anger. He is, as Dr Mulholland observed in his reports of 19 and 22 May 2000, in urgent need of treatment although such treatment may not resolve all his problems with anger. His anger was very apparent while he was giving his evidence.

[11] An insight into his pre-accident behaviour is disclosed by the following evidence. The plaintiff said he "sort of went off the rails a bit" when his father had a dispute with a company with whom his father had a contract for work and so "went on the dole for six months." In about June 1996, the plaintiff was owed $15,000-$17,000 for work done by him in his bobcat business. He said he had "a bit of a breakdown because I went around assaulting people for my money." It appears he was owed money because three large businesses had gone bankrupt. He told Dr Mulholland that he had three drink driving convictions when he was 17 years of age.

[12] On the night in question he was riding a very powerful racing motorcycle and apparently overtook on the right hand side when there was an overtaking lane on the left. He said he was very careful and was not speeding because he was carrying marijuana. On the other hand, his last memories are of reminiscing suggesting he was preoccupied with other thoughts. The fact that he was carrying marijuana, which he presumably did not wish to be caught doing, is not convincing evidence that he was driving so carefully that the collision and the plaintiff's consequent injuries were caused by the negligence of the first defendant. All of these factors together do not support the view put forward by the plaintiff that he was not the sort of person who would drive negligently, whether through impatience, recklessness or more likely momentary inattention and misjudgment.

[13] No other evidence was called to establish liability. In particular, the plaintiff did not seek to lead evidence from the emergency services who attended the scene as to their observations of, for example, the position of the vehicles after the collision. There is no suggestion that any such evidence would have assisted him. The first defendant did not give evidence. In the circumstances, however, where the onus lies on the plaintiff, there was no probative evidence of negligence for the defendants to rebut. No adverse inference[3] arises from the failure to call the first defendant.

[14] As the High Court held in West v Government Insurance Office of NSW, [4] the Court may only draw proper inferences and not engage in conjecture. Their Honours referred to the judgment of Dixon CJ in Jones v Dunkel:[5]

"In an action of negligence for death or personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind . . . . [T]he law . . . does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied."

[15] In West v Government Insurance Office of NSW, the plaintiff, who was involved in a motor vehicle collision at an intersection, claimed to suffer from retrograde amnesia about the circumstances. There was no expert evidence about skid marks or the like. No witnesses were called who observed the collision or the situation which led to it. There was no defence evidence about liability. The High Court held[6] that the dearth of evidence was such as to prevent any inference being drawn as to the conduct of either driver at the time of or immediately prior to the collision. Although it might be reasonable to infer that one or other of the drivers was negligent, there was no evidence sufficient to establish that it was the defendant. The outcome therefore was that the plaintiff failed to establish negligence on the part of the defendant.[7]

[16] In this case, there was no evidence properly capable of establishing that the first defendant had driven negligently. There was only the evidence of the plaintiff who was unable to remember what occurred and no other evidence regarding liability. The plaintiff has therefore not proved that it is more likely than not that the collision occurred as a result of the negligence of the first defendant and that the first defendant is liable, in whole or in part, for the plaintiff's injuries. Accordingly his action must fail.

[17] Accordingly it is not necessary to make an assessment as to damages that the plaintiff would have been awarded had the plaintiff been successful. However if any party requires such an assessment I am prepared to do so, if I am informed in writing of that request within 14 days.

[18] As the plaintiff has been unable to establish that negligence of the first defendant caused the collision and therefore his injuries, judgment should be given for the defendants. I shall hear submissions as to costs.

[1] Rains v Frost Enterprises Pty Ltd [1975] Qd R 287 at 294 per Dunn J.

[2] cf The King v Turner [1816] EngR 587; (1816) 5 M & S 206 at 211; [1816] EngR 587; 105 ER 1026 at 1028; R v Edwards [1975] 1 QB 27 at 40.

[3] Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367 at 371; Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; Adams v Hakoah Club Ltd (Unreported, New South Wales Court of Appeal No 40570 of 1996,

[4] [1981] HCA 38; (1981) 148 CLR 62 at 66.