Insurer successfully avoids liability for catastrophic injuries by establishing that the negligent driver was the unlicensed teenage plaintiff and not his father.

In Issue

  • Whether the plaintiff was the driver of the vehicle at the time of the collision and therefore responsible for his own injuries

Background

The plaintiff sustained catastrophic spinal injuries on 25 September 2013 when two vehicles, a Toyota Tarago and a Nissan Patrol, collided on an isolated road on Stradbroke Island in Queensland. The collision occurred when the Tarago travelled onto the wrong side of the road into the path of the Patrol. The occupants of the Tarago were the plaintiff, his 2 younger siblings, the plaintiff’s father (the first defendant) and the plaintiff’s mother (the second defendant). Liability was in dispute.

Initially, the plaintiff alleged that the collision was caused by the negligence of the first defendant as driver of the Tarago, or alternatively, as a consequence of the first and second defendants in allowing him to drive the Targo when he did not hold a driver’s licence or learner’s permit and was inexperienced and unskilled in the driving of a motor vehicle. The plaintiff later deleted reliance upon the alternative plea that he was driving the Tarago at the time of the collision.

The compulsory third party insurer of the second defendant’s vehicle (the third defendant), defended the claim on the basis that the plaintiff was driving the Tarago without a license and was wholly responsible for his injuries. The third defendant also counterclaimed for recovery of monies paid to the plaintiff and other family members, in falsely claiming the first defendant was the driver of the Tarago.

At trial, the plaintiff, his two brothers and the second defendant all gave evidence that the first defendant was driving prior to the collision, although they had a limited recollection of the events leading up to the accident and the aftermath. The driver of the Nissan could not recall who the driver of the Tarago was, whilst the first defendant did not give any evidence.

Both the plaintiff and the third defendant submitted that the failure of the other to call the first defendant as a witness was capable of giving rise to an adverse inference pursuant to the principal in Jones v Dunkel.

Decision

The court did not find either the plaintiff or the second defendant to reliable or credible and dismissed the evidence of the plaintiff’s siblings as they were sleeping before the collision occurred. The court considered evidence from bystanders attending the scene, emergency service personnel called to the scene, as well as medical and forensic and engineering experts. The court accepted that DNA evidence of blood on the deployed driver’s side airbag matched that of the plaintiff’s and the injuries sustained by the plaintiff were consistent with him being in the driver’s seat. The court found that, on the balance of probabilities, the plaintiff was the driver of the vehicle, entitling the third defendant to judgment in its favour on both the plaintiff’s claim and its counterclaim.

The court was satisfied that it was reasonable for the third defendant not to call the first defendant as a witness in circumstances where he had given an untruthful account. Further, the court declined to draw any adverse inference against the plaintiff in circumstances where the first defendant had already given a version on oath, which was tendered in evidence.

Implications for you

It is not reasonable to expect that a party would call in its case a witness whose account was untruthful. Third party witness evidence and expert evidence is therefore critical in determining the issues in dispute in those circumstances.