Introduction

On 25 May 2018, Judge Levy handed down a decision in favour of the insurer, who was joined as a defendant to the proceeding under section 119 of the Motor Accidents Compensation Act 1999 (Act).

The hearing was conducted in relation to a single issue: who was the driver and who was the passenger in the vehicle at the time of the accident.

Although he found that the evidence of the plaintiff and first defendant was not accepted, his Honour did not find that the plaintiff had made a false claim.

Facts

On 12 October 2013, Graham Coward sustained serious injuries in the early hours of the morning in a single vehicle car accident on Burley Griffin Way at Binalong, NSW. The car slid off the road before rolling over an embankment. The only other person in the vehicle at the time was Gail Stephenson, his de facto wife and the first defendant.

The plaintiff provided histories to ambulance officers, hospital staff and NSW Police that he was the driver of the vehicle at the time of the accident, however, weeks later his evidence had changed. The plaintiff stated that he formed the view that he was the passenger in the crash as a result of a dream, nightmare or recurrent thought while asleep in Liverpool Hospital during which he was sitting in the passenger seat during the accident. The vision ceased at the point that he was hanging upside down in the passenger’s seat, restrained by the seatbelt.

The first defendant initially provided evidence to ambulance staff that she was the passenger in the vehicle, however, advised a doctor at Yass Hospital that she did not recall the accident. Her recollection of events was said to have changed after she drove past the scene and she came to realise that she had been driving at the time of the accident.

The insurer relied on contemporaneous ambulance and hospital records, as well as a statement obtained from the plaintiff by police, which recorded histories from the plaintiff and first defendant that Coward was the driver. The paramedics and a police officer were called to give evidence to substantiate the written records.

The only qualified medical opinion in evidence was an unchallenged neurological opinion tendered by the insurer to the effect that the plaintiff had not suffered any significant head or other injuries which might result in the described amnesic state and altered recollection.

The first defendant was subjected to cross-examination over her evidence that she had consumed 6 throw down beers prior to 1 pm on the previous day, after which she ceased drinking. Hospital records noted that she appeared ‘slightly intoxicated’, smelled strongly of alcohol and vomited at approximately 6.30 am – approximately 4 hours after the accident.

Decision

Judge Levy found the plaintiff’s evidence to be an unreliable reconstruction of events, which could not be relied upon in the absence of any expert evidence to overturn contemporaneous records to the contrary.

Similarly, his Honour did not accept the first defendant’s evidence on the basis that her evidence was unreliable and an insufficient basis to overturn contemporaneous statements to the effect that she was the passenger.

Weighing against accepting the first defendant’s evidence was a finding that she had understated her pre-accident alcohol consumption.

In circumstances where much of the insurer’s case was predicated on contemporaneous medical records, Judge Levy noted that such documents needed to be treated with caution as they were principally created for the purposes of documenting medical assessment and treatment rather than as part of a liability investigation per Mason v Demasi [2009] NSWCA 227.

Although ultimately accepting that, in particular, the paramedics ‘had a legitimate and good reason to, at the time, enquire, and to document, as to whether the plaintiff was the driver when assessing the nature and extent of his injuries’, Judge Levy also accepted the insurer’s submission that this case was distinguishable from Demasi because of the plaintiff’s concession that the contemporaneous histories to treatment providers had come from him.

While finding against the plaintiff, his Honour did not accept that he had made a false claim. Although it is not explicitly stated, Judge Levy appears to accept that the plaintiff genuinely believed that the version of events contained in his epiphany was true.