These proceedings involved an accident between the plaintiff’s motorcycle and the first defendant’s Mazda sedan on a suburban street which had one traffic lane in each direction (each lane flanked by a shoulder area).  The circumstances which led up to the collision were in dispute. The plaintiff alleged the first defendant had pulled out into his path from the road shoulder suddenly and without warning, an allegation which the first defendant denied.

At the hearing in the District Court of Queensland, the Judge found the plaintiff to be an unimpressive witness, and dismissed his claim. 

The Competing Versions

On 3 June 2019 the plaintiff was riding his motorcycle and collided with a Mazda motor vehicle driven by the first defendant. The plaintiff suffered significant injuries as a result of the collision.

At the hearing, the plaintiff alleged that the first defendant’s car had been stationary on the left shoulder of the road on which he was travelling. He claimed that without warning or indicating, the first defendant attempted a U-turn and pulled out into the traffic lane into his path, He braked, but was unable to avoid a collision and collided with the driver’s side front door.

The plaintiff also relied on some evidence from an independent witness about whether the first defendant’s vehicle ended up on the roadway after the collision, as he contended that supported his version of how the accident happened. That witness did not see the accident, but indicated that after the collision, the first defendant’s Mazda had been ‘in the middle of the road’ and positioned opposite her driveway (not the driveway leading into the church as the first defendant claimed).

The first defendant claimed that she had not been stationary in the road shoulder before the collision at all, but had in fact been traveling slowly in the same lane and direction as the plaintiff’s motorcycle, albeit some distance ahead of the motorcycle. It had been her intention to make a right hand turn into a church driveway, and she slowed down and indicated that intention. Seeing no oncoming traffic, she commenced a righthand turn, and was only part way through that manoeuvre when the plaintiff’s motorcycle slammed into her driver’s door.

The Court had to establish how the accident happened, and having done so, whether the first defendant had been negligent. Only if that question was answered in the affirmative would the court move on to consider contributory negligence.

Unimpressive Witness

The plaintiff’s evidence at trial was significantly different to statements he had made in the course of the police investigation into the accident.

He made a statement to police on the day, in which he couldn’t say how fast he’d been driving, and couldn’t explain how the first defendant’s car came to be ahead of his. He thought it may have been doing a u-turn, or it had just pulled out from a driveway or the side of the road into his lane, but in any case, despite slamming on his brakes, he didn’t have time to avoid colliding with it.

He was interviewed by police a couple of weeks later, and the first defendant’s version was put to him. His response to police was.

Oh, okay, that makes sense I did see – I did see a car slow down in front of me because I was looking – I was looking at the lights in front of me … and then I noticed that she had slowed down and then I slammed and I probably tried – I went into that lane to avoid her and then she pulled out in front of me – so thank you for explaining that to me because I do realise – yeah, there was somebody in front of me, looked at the lights, she slowed down abruptly and had turned and not seen me behind her but she was looking at this way not behind her.’

The plaintiff submitted that his memory at the time of the second interview was affected by pain. The Judge found, however, that in the second interview, the plaintiff not only agreed with the first defendant’s version of how the accident occurred, he also conceded that he had seen a vehicle travelling in front of him and that because he had looked ahead at traffic lights, by the time he appreciated the vehicle ahead was slowing down , it was too late to avoid a collision.

The judge noted that the independent witness had had ‘some difficulty’ remembering where the Mazda ended up, and nor would one expect a person in her position to pay particular attention to the location of the vehicle. Additionally the Mazda had been moved a short time after the collision anyway. Without being critical, the judge was not persuaded the independent witness’ recollections were accurate.

In concluding that the plaintiff was an unimpressive witness, Judge Farr noted the plaintiff:

• Gave evidence he could not recall his speed at the relevant time; but he told police officers on the day of the accident he was travelling 50 – 60 kilometres per hour.
• Claimed to have given inaccurate information to police due to either feeling intimidated or as a consequence of pain or medication; but there was nothing in the police interview (answers, comments or demeanour) to support the assertion.

Judge Farr thought the plaintiff ‘gave the distinct impression of being a witness that had little independent recollection of the event in question and had reconstructed events in his mind’.

Assessment of Damages

Although he dismissed the plaintiff’s claim, in line with established practice (in the event of a successful appeal against the liability finding), Judge Farr assessed damages that would otherwise have been ordered to be: 

• General damages – Item 37, ISV 30 - $52,900.00.
• Past economic loss - $73,148.00.
• Interest on past economic loss - $86.00.
• Past loss of superannuation - $6,891.00.
• Future economic loss - $nil.
• Future loss of superannuation - $nil.

Past and future special damages - $3,000.00.

In reaching the decision to make no award for future economic loss, Judge Farr considered the plaintiff had not demonstrated a loss of earning capacity because of his injuries, given he had been working full time hours and beyond, for a substantial period.

Conclusion

This decision highlights the importance of a careful analysis of the versions given by the parties throughout a claim. If there are inconsistencies in versions given to police, interview recordings should be obtained (if available), particularly if a witness states later that inaccurate information was provided due to ‘feeling intimidated or as a consequence of pain or medication’, or some other assertion is made.

This similarly applies to versions contained in medical expert reports following interview with the plaintiff. You may need to clarify (at the relevant time, rather than after a substantial period of time has lapsed) whether there are any notes or recordings of interview taken by the expert in preparation of their report and obtain a copy.

Further information / assistance regarding the issues raised in this article is available from the author Chelsea Farry, Senior Associate or your usual contact at Moray & Agnew.