A badly injured plaintiff was unsuccessful at trial when the Court determined that a red vehicle, which the plaintiff alleged caused the accident, did not exist.
- The plaintiff claimed that the accident occurred as a result of the negligence of an unidentified red vehicle. The existence of the red vehicle was disputed by the Nominal Defendant.
- Prior to trial, the parties agreed as to the quantum of damages in the event that the Nominal Defendant was found liable for the accident on behalf of the unidentified driver.
At approximately 3.15pm on 15 February 2015, the plaintiff was driving from Rockhampton to Yeppoon along Yeppoon Road in a Toyota Hilux. The particular section of Yeppoon Road is 1 lane in each direction, separated by a broken white line.
A Ford Falcon, driven by Hayden Finn, was stationary opposite the driveway of 1600 Yeppoon Road (the premises). The plaintiff collided with rear of the Ford Falcon. The plaintiff sustained severe injuries. Mr Finn and his mother, Ms Sharon Finn, who was a passenger at the time, also sustained personal injuries. Mr and Ms Finn subsequently brought claims against the plaintiff for their injuries.
The plaintiff alleged that prior to the accident, he had been following an unidentified red vehicle at a safe distance. He alleged that the accident was caused when the unidentified red vehicle suddenly and without warning, “violently” swerved around the Ford Falcon, onto the shoulder of the road and continued driving. As a result of the sudden manoeuvre the plaintiff was unable to avoid collision with the stationary Ford Falcon, which he had not previously observed due to the presence of the red vehicle between them.
The Nominal Defendant disputed that there was any red vehicle involved in the accident.
The threshold issue for determination by the Court was whether the red vehicle existed.
If the Court were to find in favour of the plaintiff in relation to the threshold issue, the parties were in dispute about all aspects of liability. The plaintiff argued that the red vehicle had been negligent in a number of ways however the Nominal Defendant denied that:
- The driver of the red vehicle owed a duty of care to the plaintiff;
- The driver of the red vehicle had been negligent; and
- The driver of the red vehicle’s actions were causative of the collision.
Evidence at trial
The question of liability required assessment and consideration of the witness evidence. The trial judge was presented with the following accounts at trial:
The plaintiff submitted that he had been travelling 2-3 seconds behind the red vehicle prior to the accident, which he stated was his usual practice. According to the plaintiff, the driver of the red vehicle suddenly “ripped it off the road” approximately 81 metres from the premises. As this occurred, he observed Mr Finn’s vehicle for the first time. He braked and turned the steering wheel however he could not avoid the collision. He rejected the suggestion that there was no red vehicle and that what he had actually observed was a parked red vehicle approximately 200 metres ahead of the accident.
The trial judge found the plaintiff to be an honest witness overall however but his evidence suffered somewhat from reconstruction based on what he thought he would have done, rather than him recalling what he had actually occurred.
Mr Spence was travelling in the opposite direction to the plaintiff, towards Rockhampton, and observed the accident. He described noticing a red vehicle, out of the edge of a dust cloud on the right-hand side of the road, in a gully or on the edge of the road. Mr Spence stated that the red vehicle came up onto the road and passed him whilst accelerating.
The trial judge found that Mr Spence was a candid witness. While Mr Spence’s evidence was accepted, he observed the accident from some distance away (albeit on a flat, straight road).
Ms Finn stated that she observed her son indicate approximately 300 metres before the premises while checking his rear-vision mirror and applying the brakes a few times before coming to a stop. She also stated that she checked the left-hand side mirror and observed a white Toyota Hilux coming towards them. Ms Finn observed a parked red vehicle approximately 200 metres ahead of them on the left-hand side of the road. She did not observe a red vehicle pass them on the shoulder of the road.
The trial judge considered that it was likely that Ms Finn observed Mr Finn taking precautions while slowing the vehicle. The trial judge accepted that it was likely that Ms Finn looked in the left-side mirror and saw the Toyota Hilux travelling behind. Although the trial judge considered that Ms Finn was an honest witness with a reasonable recollection, it was noted that she was pursuing her own claim against the plaintiff and was therefore not an independent witness.
Mr Finn gave evidence that approximately 200 metres before the premises, he put his blinker on and started slowing down before coming to a complete stop. He stated that he was watching oncoming traffic and then looked in his rear vision mirror and saw the Toyota Hilux behind them. He did not observe a red vehicle between them and the Toyota Hilux at any point.
The trial judge found the plaintiff to be a very candid witness. The trial judge accepted that he saw the Toyota Hilux in his rear-vision mirror but was otherwise watching for oncoming traffic.
Mr Crane was working on the Finn’s property at the time of the collision. He heard but did not observe the collision. When he arrived at the scene, he noticed that there were 4 cars parked up the road, 1 of which was red.
The trial judge considered that Mr Crane was a straightforward witness but his evidence was of limited assistance.
Ms Jensen was travelling in the right-hand lane towards Rockhampton. She noted a vehicle was stationary in the left-hand lane. As Ms Jensen approached she observed that the vehicle had its blinker on. She continued past the vehicle and heard a very loud bang. She looked in her rear-view mirror and saw a collision had occurred. She stated that she was barely past the stationary vehicle when she heard the collision. She did not observe a red vehicle swerve dangerously onto the shoulder of the road or a cloud of dust as was observed by Mr Spence. She gave evidence that she would have recalled a vehicle wildly swerving because it would have caused her to fear for her own safety.
The trial judge found Ms Jensen to be an impressive and alert witness.
Mr Evans was travelling in the left-hand lane towards Yeppoon. He stated that the Toyota Hilux overtook him and was approaching another utility very fast. He observed the Toyota Hilux collide with the rear of the utility. He did not observe a red vehicle between the Toyota Hilux and the utility.
Mr Evan’s evidence was subject to considerable challenge because his version had changed over time.
Whilst the trial judge did not consider Mr Evans to be unreliable, the Court expressed some caution in accepting his evidence in its entirety.
Ms Medlin was not a witness to the accident however she gave evidence in relation to the plaintiff’s driving behaviours. Particularly, that the plaintiff was a safe and conscientious driver.
The trial judge concluded that whilst evidence of habit was admissible and can be relied on, there were other witnesses to what actually occurred. This situation is different to the case of Kerle v BN Alliance Coal Operations Pty Ltd & Ors where the trial judge took into account evidence of the plaintiff’s driving where there was no direct evidence of what had occurred.
Senior Constable McLennan
Senior Constable McLennan was 1 of the attending officers at the accident. He took some notes at the scene however they were scant because there was limited police support due to officers being diverted to another incident.
The decision at trial
Although the trial judge considered that the plaintiff’s version of events could have occurred, ultimately, it was found that there was no red vehicle between him and the Ford Falcon. The reasons for this decision were as follows:
- While Mr Spence’s evidence superficially supported the plaintiff’s case, his version of events did not support the existence of the red vehicle. This conclusion was based on the speed of traffic at the time of the accident, the proximity of the red vehicle to the accident and the cause of the alleged dust cloud;
- The fact that Ms Jensen did not observe a red vehicle despite that her attention was on the Ford Falcon immediately prior to the accident;
- If there had been a red vehicle which behaved in the manner described by the plaintiff, it is likely that Mr Evans would have noticed given that the road was straight and he was looking ahead; and
- Ms Finn did not observe the red vehicle when she checked the left-side mirror; and
- The accounts of the red vehicle parked ahead of the accident.
The plaintiff’s claim was dismissed. It was not necessary for the trial judge to assess whether the driver of the red vehicle had been negligent.