February 7, 2019

Insurance

Valeriani v Geissler & Anor. [2018] QSC 315

In October 2013, a motorcycle and vehicle were driving side by side in the same direction when they collided. As a result, the rider of the motorcycle (Plaintiff) made a personal injury claim. 

Why did the Plaintiff claim the driver was at fault?

The Plaintiff insisted that if it weren't for the defendant's attempt to merge into the right lane in which he was travelling and without giving way, the vehicle would not have struck his motorcycle.  This was in circumstances where the Plaintiff says he was riding his bike to the far right side of the right lane.  

What did the Court find?

A determination into what actually occurred was made taking into account various statements given by both drivers and in conjunction with objective evidence as to points of impact/damage between the vehicles.  There were no independent witnesses of the impact itself. Credit played an important role.

There were inconsistencies by the Plaintiff in his detailed version given at trial versus what he said to a witness (who attended the scene afterwards) that, with respect to what happened, he did not know, he did not see the Defendant driver.  The Plaintiff later that day advised Police that all he knew was that the vehicles came into contact with each other and he fell off his bike, with comment by the Plaintiff about the incident occurring due to misjudgement of distance.  The Court placed significant weight on there being no suggestion by the Plaintiff of any fault on the Defendant driver in such versions occurring at the same time to the collision.  That you would have thought the Plaintiff would have put the blame on the Defendant driver immediately after the accident in such circumstances where the Plaintiff said that he was to the far right side of the right lane, which would require the Defendant driver to move significantly right in such circumstances. 

Inconsistencies by the Defendant driver were raised so far as her advising a witness attending the scene that she was sorry, to also her getting wrong the colour of the Plaintiff’s motorcycle and the estimation of where the accident occurred with regard to the nearest intersection.  This did not cause the Court to doubt the honesty of the Defendant driver, noting that such apology was consistent with something that any decent person would say following an accident and when a person was injured, also considering the Defendant driver’s very young age at the time.  Not much weight was otherwise given to the other inconsistencies given the matching up of the evidence of the Defendant driver with the additional objective evidence, as below.  

Witnesses who attended the aftermath observed debris in the right lane leading into the left lane over the middle lines, which did not support the Plaintiff’s assertions that the accident occurred close to the right side/medium strip.    

Point of contact between the two vehicles was the final main point of contention. The Plaintiff said it was to the front right side of the defendant’s car.  The Plaintiff did say at trial that he had an intention to merge in behind the Defendant’s vehicle. The Defendant driver maintained, immediately after the accident and ongoing, that she did not make any attempt to nor did she change into the right lane. That the Plaintiff’s motorcycle travelled into the left lane and collided with her vehicle at the right rear side.  No disagreement that damage/point of impact on the Plaintiff’s bike was at the front left handlebar area.  A witness (the plaintiff’s son) attending the scene gave inconsistent evidence to seeing/not noticing any damage to the right rear and that it was to the front right side in a previous statement. However during the trial when shown photographs of the damage to the Defendant driver’s vehicle he seemed to accept that the damage was the same as that observed on the day of the accident to the right rear only.  The photos did not evidence any damage to the front of the Defendant driver’s vehicle. This was found to be consistent with the Defendant driver’s version that her vehicle was purchased new, about/less than a year before the accident, with no damage at all until the crash.  This was also consistent with the Defendant driver’s version that as she looked behind her, she saw the Plaintiff’s motorbike approaching and then felt something hit her car.  

The Police records noted damage to the front right side of the Defendant’s vehicle, which was inconsistent with other Police records to damage to the rear and to the attending police officer’s version that damage was to the right rear side only.  The Police officer explained this away as an error arising to ticking the wrong box in the selection criteria for the report.  The Court accepted this error given the other evidence as a whole.

The Plaintiff was found to be the cause of the collision for failing to keep a proper lookout and riding his motorcycle into the lane occupied by the Defendant driver and into her vehicle. The Plaintiff’s claim was dismissed.  

Implications:

This decision turned on its own facts.  What it does reinforce, however, is the importance of consistency not only in reporting of how the accident occurred by the parties involved and witnesses but also to support for a version of events through other objective physical evidence to determine, on the balance what happened.  Without such physical evidence, it then comes down to a “he said, she said” argument determined by issues of credit.