The Court of Appeal confirmed an insurer was not liable for catastrophic injuries sustained by an unlicensed teenager as he, not his father, was the driver of the vehicle at the time of the accident
Whether the trial judge was correct in finding the plaintiff was the driver of the vehicle at the time of the collision.
The appellant 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. He was then aged 17 years and was still at school. 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 appellant, his parents and two younger siblings. The only issue at trial was whether it was the father or the appellant driving the vehicle at the time of the incident.
The Decision at Trial
The trial judge found that on the balance of probabilities, the appellant (who did not hold a driver’s licence or learner’s permit), had been driving when the incident occurred and dismissed the appellant’s claim.
Issues on Appeal
The appeal related to whether the trial judge was correct in finding that the appellant was driving at the time of the incident. The appellant argued that the finding of the trial judge was affected by a number of errors including as to how the appellant’s blood came to be upon the driver’s airbag and the mechanics of the causation of the appellant’s injuries.
The Decision on Appeal
Although the Court of Appeal conceded that the appellant’s injuries did not provide any clear indication that he was the driver, they did not particularly indicate that he was a passenger either. Whilst Dr Frank Grigg (engineer) suggested the kind of injuries the appellant suffered indicated that he was not the driver, the Court of Appeal stated that the weakness in Dr Grigg’s opinion was that his expertise was not in medical science. The medical evidence itself was also not compelling as to whether the appellant was driving or not.
Nevertheless, the Court of Appeal concluded that the significance of the DNA evidence on the airbag was persuasive having regard to the nature of the appellant’s facial and teeth injuries, which made it inherently probable that he was the driver. Significant weight was given to the expert evidence of a forensic pathologist, over the witness testimonies of the appellant’s family.
Ultimately, the Court of Appeal held that the decision of the trial judge was neither “glaringly improbable” nor “contrary to compelling inferences” and that the appellant’s arguments did not demonstrate that the decision of the trial judge was erroneous.
Implications for you
Cases such as this are finely balanced and require an assessment of the probabilities of competing hypotheses where there are ambiguities as to the factual circumstances of a claim. The case acts as an important reminder that when relying on expert evidence, particularly in factually complex matters, it is vital that the evidence given is within the expert’s field of expertise.
Lee v Lee; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited  QCA 104
Venessa Werynski - Associate Barry.Nilsson. Lawyers Website: www.bnlaw.com.au