October 30, 2019

Insurance Litigation

 AAI Limited v Atkinson. [2019] QCA 228

In September 2012, there was a collision between the Plaintiff and Defendant drivers’ vehicles. The Defendant driver was travelling along a roadway, with the origin of where the Plaintiff’s vehicle came from being in dispute. A claim for personal injury was made by the Plaintiff as a result.

Why did the Plaintiff claim the Defendant driver was at fault?

That, but for the actions of the Defendant driver in failing to keep a proper lookout and driving with due care and attention, he would not have struck the Plaintiff’s vehicle. This was in circumstances where the Plaintiff says she was stationary at a point on the roadway directly in front of the Defendant’s vehicle, with her right indicator on, with an intention to do a U-turn. The Defendant driver maintained that the Plaintiff’s vehicle came from the left side of the roadway and from a side road to the left of the Defendant’s vehicle and without giving way travelled into the path of the Defendant’s vehicle.    

What did the Court find?

A determination was made taking into account the various statements given by the Plaintiff, the Defendant driver and his passenger daughter (who was a child at the time) and other witnesses who were not in the vehicles at the time.  The consistency or otherwise of such statements and in conjunction with objective physical evidence as to the point of impact / damage between the vehicles were significant factors in the determination. 

There was no photographic evidence of the damage to the Plaintiff’s vehicle but there was of the damage to the Defendant’s vehicle. Based on that and the evidence of the witnesses as a whole, it was found that the main point of damage to the Plaintiff’s vehicle was to the front driver’s side door and to the Defendant’ vehicle the front left corner on the passenger side. The Plaintiff said that her vehicle was close to the centre line at an angle given her intention to execute a U-turn when the Defendant driver collided with the side of her vehicle.  This was supported by her partner who was waiting to be collected from a site nearby.  On that basis, at first instance, the damage points and evidence for the plaintiff was said to be consistent and that the collision would not have occurred in circumstances where the vehicles were perpendicular to each other, eg. on the basis of the Defendants submissions that she saw the Plaintiff come from their left from a side street.  In such circumstances, the whole of the front of the Defendant driver’s vehicle would have been expect to have sustained significant damage rather than to the front passenger side corner.  The Plaintiff’s vehicle must have been on an angle to the Defendant driver’s vehicle when impact occurred. No evidence to support, nor was it pleaded, that the Plaintiff’s vehicle had been stationary on the left side of the roadway prior to turning into the path of the Defendant’s vehicle in order to make a U-turn.  The Defendant driver has simply failed to pay due care and attention and was negligent.

The Defendant driver’s version was said to be more of a reconstruction as to how he believed the accident must have happened and after speaking to his daughter post-accident.  This is further given that he initially reported to police that he did not really see the vehicle before impact. Inconsistently, at trial, his version was that the Plaintiff’s vehicle came from his left.  The credit of the Defendant driver’s daughter was also considered in light of her lack of observations of movements of other vehicles on the roadway at around the relevant time which others observed and she did not. Further, the apparent receipt by her of a text message shortly before the accident to which she was looking down, which raised issues of distraction and put into doubt the reliability of her observations. 

On appeal, various grounds were given as to the findings in the first instance not being reasonably open on the evidence.  On appeal, the Court considered the decisions of Robinson Helicopter Company Inc. v McDermott [2016] HCA 22 and Lee v Lee [2019] HCA 28 in respect of the appellant court’s considerations. In particular, there should not be interference with a primary Judge’s findings in relation to factual matters which relate to impressions formed about the credibility and reliability of witnesses at the trial. Judges hearing an appeal do not have the luxury to hear firsthand from witnesses. Interference by a Court on appeal should only be made in circumstances where there is “incontrovertible facts or uncontested testimony” or they are “glaringly improbable” or “contrary to compelling inferences” – per Robinson. The main grounds of appeal were in relation to such factors. The Court also doubted the value of evidence that sought to draw an inference of points of impact and respective positions of vehicles on the roadway at the time of impact based on each vehicle’s position at rest post-collision. Where vehicles come to rest post-collision is influenced by a number of a factors including forces involved, speed, angles of vehicles etc.

A matter of credit was raised with respect to the Plaintiff, with the Defendant submitting that the fact that the Plaintiff held a Learner Driver’s Permit, but was driving unaccompanied at the time of the accident, and for which she was breached by Police for same was relevant to show her inexperience as a driver. That this required the primary Judge to give more careful analysis of the Plaintiff’s version.  This was rejected on the basis that that type of traffic offence does not mean that the evidence of the Plaintiff was more or less reliable than that of other witnesses as to how/why the collision occurred. 


The decision reinforces the importance of consistency not only of reporting how the accident occurred by the parties involved but also objective physical evidence and to what extent it matches in with witnesses’ observations. Without physical evidence, the outcome would be more significantly influenced by findings to the credit of the parties involved.