Australia: Limelight Issue No.66: CTP insurance policy

On 23 March 2017, the Supreme Court of Queensland handed down its decision in favour of the CTP insurer in a landmark case involving the catastrophic injury of a young man in a motor accident.

The case turned on the identity of the driver of the insured vehicle at the time of the accident, with the young man (plaintiff) and his parents asserting that it was the father who was driving, in circumstances where the CTP insurance policy did not respond if the plaintiff was the driver.

After an 8-day liability-only hearing and a thorough deliberation on the competing forensic and medical evidence presented to determine the identity of the driver of the vehicle, the Court found that the plaintiff was the driver.

Facts

On 25 September 2013, the plaintiff and his family were on an outing on Stradbroke Island. The plaintiff, who was 17 and not licensed to drive, was permitted to drive the family vehicle (the SUV) on this day. Whilst driving, the plaintiff failed to keep the SUV on the correct side of the road and was catastrophically injured in a near head-on collision with an approaching vehicle.

The driver of the other vehicle was unable to assist in identifying the driver of the SUV. All he could attest to was that he had seen both the plaintiff and his father in the rear cabin of the SUV within a couple of minutes after the accident.

It was agreed by all first responders who attended the collision scene that there was confusion in the aftermath and difficulty in communicating with the plaintiff and his family, who were Taiwanese.

Attending police identified that SUV's airbag had been deployed in the collision and what appeared to be blood was present on the airbag.

Relevantly, the driver's seatbelt was in the buckled position and the seat laid back. It was thought by police that the driver had not been wearing the seatbelt but instead it had been clipped in place to stop the warning beep that vehicles emit to prompt a driver to buckle up.

The police sought to identify the driver and DNA samples were later taken from the plaintiff and his father for testing. A Scenes of Crime Officer obtained a swab from the airbag.

The DNA samples were compared with the swab and the blood found on the airbag was found to be that of the plaintiff. The plaintiff would later decline to be interviewed by police.

No mechanical defects were identified through vehicle inspection of the SUV.

Injuries

The plaintiff sustained spinal injuries, which were later diagnosed as an unstable fracture of the cervical spine at C6/7; partial spinal cord contusions; a partial tetraplegia from C7 downwards; and maxillofacial and dental alveolar fractures.

The father had no visible injuries, but was later treated for potential spinal injuries. He then said his hand had sustained cuts.

Insurance claim

The plaintiff and his mother lodged notices of claim with the CTP insurer of the SUV, asserting that the father was the driver of the SUV at the time of the collision.

The CTP insurer made payments pursuant to these claims, including rehabilitation costs for the plaintiff and a settlement amount to the mother; however, it later contended that the plaintiff was the driver at the time of the collision and that the payments should therefore be returned, given that the CTP policy did not respond to the plaintiff's claim, and issues of contributory negligence arose relating to the mother's claim, if the plaintiff was the driver.

Proceedings

The plaintiff issued proceedings against his parents and the CTP insurer.

The pleading on which the plaintiff eventually relied alleged that the collision was caused by the negligence of his father as the driver of the SUV. On that basis, the plaintiff pleaded against the CTP insurer that, as a passenger, he should be covered by the CTP policy.

The CTP insurer defended the claim on the basis that the father was not driving the SUV at the time of the collision; it was instead the plaintiff and that, by reason of the plaintiff's conduct in driving without being the holder of a driver's licence or a learner's permit, he was wholly responsible for his injuries or 100% contributorily negligent, so that the CTP insurer had no liability to him.

The CTP insurer also counterclaimed for recovery of the payments made to the plaintiff and members of his family on the basis those payments were induced by the deceit of the plaintiff and the mother in falsely claiming the father was the driver of the SUV at the time of the collision.

Plaintiff's Case

The plaintiff and his mother gave evidence that, at the time of the collision, he was in the rear of the vehicle with his two younger siblings and sitting directly behind his father, who was driving.

The father, while present in court for the duration of the hearing, was not called to give evidence for the plaintiff's case.

The plaintiff submitted that the DNA evidence was circumstantial and there was an entirely reasonable explanation why his blood was on the airbag, notwithstanding his assertion that he was sitting in the rear of the SUV, as well as the positioning of the driver's seat and seatbelt after the collision.

The plaintiff also submitted that it was inherently unlikely that the father, within a very small window of time, would have had the foresight to remove the plaintiff from the driver's seat into the rear of the SUV to avoid anyone observing the plaintiff as the driver.

The plaintiff led evidence from a neurosurgeon, who proffered the opinion that the plaintiff's injuries could have occurred as either the driver or backseat passenger.

An expert engineer called by the plaintiff undertook an assessment of the safety devices in the SUV to determine their likely effectiveness in a collision of this nature and whether the plaintiff's and father's injuries were consistent with either being the driver.

The engineer concluded the fact the driver's airbag had deployed reduced the likelihood the driver would suffer facial injuries of the nature sustained by the plaintiff. He equated facial injuries to head/neck injuries.

The plaintiff also relied on evidence of a DNA forensic biology consultant to cast doubt on the accuracy of the collecting and analysis of the blood samples for DNA comparison.

Insurer's Case

The CTP insurer's case was mounted on the preponderance of evidence pointing to the fact the plaintiff was the driver.

The medical and biomechanical evidence relied upon by the CTP insurer from a neurosurgeon and an oral and maxillofacial surgeon, supported a conclusion that the plaintiff's facial and dental injuries, together with his spinal injuries, were wholly consistent with the plaintiff's face having been struck by the deployed airbag whilst having been unrestrained in the driver's seat.

As a consequence of the plaintiff having been unrestrained, he sustained a hyper-extension injury to his spine when his unrestrained body moved forward at the time of impact and his face struck the airbag.

The lowering of the driver's seat was consistent with the removal of the plaintiff from that seat into the rear compartment.

The blood found on the airbag was the plaintiff's and consistent with a person bleeding from facial and dental injuries. It was inconsistent with splattering, which may have occurred had an injury occurred in the rear of the SUV. There were no swipe or wipe marks or other evidence of transfer from another source.

The CTP insurer also relied on the opinions of a specialist in forensic medicine and pathology and the forensic scientist who had originally been responsible for analysing the DNA.

The CTP insurer further submitted that the father did not suffer injuries that would have resulted in significant bleeding.

Decision

Justice Boddice accepted the blood found on the driver's deployed airbag was the plaintiff's. The more salient issue was how it came to be there.

His Honour found the evidence of the plaintiff and his mother was unreliable and not credible. He considered both were evasive. Neither had provided an explanation for the presence of the plaintiff's blood on the airbag. There was otherwise no direct evidence that the plaintiff's blood had been deposited on the airbag from another source.

After a meticulous review of the evidence, his Honour was satisfied that, on the balance of probabilities, the driver of the SUV at the time of the collision was the plaintiff.

The CTP insurer was therefore successful in its defence and on its counterclaim.

Gilchrist Connell acted for the CTP insurer

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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