Proof of alleged fraud: Who was driving?

20 February 2020

How to prove alleged fraud when there is a suspicion that the driver and passenger have swapped places after a motor vehicle accident? The sole issue for determination in this case was the identity of the driver. The High Court of Australia (HCA) in Lee v Lee [2019] HCA 28 upheld an appeal from the Queensland Court of Appeal (QCA) and determined that the QCA fell into error when it did not determine who the driver was in the subject accident based on compelling inferences from the evidence. At first instance, the trial Judge held against the appellant (plaintiff) and the QCA dismissed the subsequent appeal but did not decide for itself who the driver was despite undertaking a careful analysis of the evidence and identifying relevant inferences.


  • Allegations of fraud – Proof from inferences where there is an issue as to the identity of the driver at the time of the motor vehicle accident
  • Role of appellate Court

The background

At the time of the motor vehicle accident, the appellant (then an unlicensed 17-year old) was travelling in a vehicle with his parents and two younger brothers. The family were from Taiwan. The appellant sustained severe injuries that rendered him an incomplete tetraplegic. The accident was caused by the negligence of the driver of the appellant’s vehicle.

The appellant brought proceedings in the Supreme Court of Queensland claiming damages for negligence against the father, mother, and the CTP insurer of the vehicle RACQ Insurance. The appellant claimed that his father was the driver, a position supported by his parents. However, RACQ contended that the appellant himself was the driver, and that he was moved by the father immediately after the accident to make it look like he was not driving the vehicle. This was largely based on the presence of the appellant’s DNA evidence on the driver’s airbag.

At first instance, the trial judge formed an adverse impression of the credibility of the appellant and the mother. The father was not called to give evidence. After considering the evidence, Judge Boddice determined that the appellant was the driver and dismissed his claim with costs.

The appellant appealed to the QCA. Every piece of evidence (from the manner of how the appellant’s blood likely came to be on the driver’s airbag, the operation of the driver’s seatbelt, and the likelihood that the father could have moved the appellant in the short amount of time before assistance arrived) was carefully reviewed. Of note is the QCA’s observation that the trial Judge’s finding that the driver was not wearing a seatbelt was not only contrary to each party’s case but would, on further analysis, lead to a conclusion that the appellant could not have been the driver. Despite the QCA’s observation that it was much more likely that the appellant was not the driver of the vehicle, it did not find the trial judge’s decision to be “glaringly improbable” or “contrary to compelling inferences”. The appeal was dismissed with costs.

The appellant obtained special leave to appeal to the HCA. The appeal was brought on two grounds. The first ground challenged the adequacy of the QCA’s reasons. The second ground challenged the QCA’s restraint in not finding that the trial Judge’s decision that the appellant was the driver of the vehicle was contrary to the compelling inferences from uncontroverted evidence.

The decision at trial

The appellant was successful on his second ground of appeal. The HCA decided that the QCA failed in its duty to persist in its task of weighing the conflicting evidence and drawing its own inferences and conclusions and ultimately deciding for itself which of the two hypotheses was the more probable, especially where certain facts (such as the issue in relation to the seatbelt) were undisputed or determined at trial. The HCA also determined that, on the balance of probabilities, the father was the driver of the vehicle and awarded the appellant substantial damages and costs.

Implications for you

The case demonstrates the difficulties of proof for parties in motor vehicle accident claims where the identity of the driver is in issue. A number of past cases have dealt with this issue, including the NSW case Vale v Vale & Anor [2001] NSWCA 245 (in which our Henry Silvester was then junior counsel for the insurer). In that case, the insurer successfully defended the claim on the basis of, among other things, contemporaneous witness accounts which led to the finding that the plaintiff was the driver and fraud was proved. In Lee v Lee, the Courts were faced with two likely scenarios which were both supported by conflicting expert evidence and contemporaneous witness accounts. An appellate Court has a duty to weigh up all available evidence (especially evidence that was undisputed or determined at trial) and decide the disputed issue on the balance of probabilities.

Ask us how we can help

Receive our latest news, insights and events
Barry Nilsson acknowledges the traditional owners of the land on which we conduct our business, and pays respect to their Elders past, present and emerging.
Liability limited by a scheme approved under Professional Standards Legislation