U-turn, U lose: CTP claim fails due to inconsistencies in plaintiff’s evidence over passage of time

08 May 2019

Following a three day trial in the District Court at Townsville, Coker DCJ found that a woman who was involved in a collision whilst performing a legal u-turn was not entitled to damages for her injuries because the accident was wholly a result of her own negligence.

In issue

  • When should the plaintiff’s version of events should be accepted in a case of ‘her word against his’.
  • What is required for a plaintiff to prove breach of duty by a defendant in a motor vehicle accident case.

The background

The plaintiff was injured when she attempted to perform a legal u-turn and the first defendant’s Toyota Hilux (which was travelling behind her) ‘T-boned’ her vehicle.

The circumstances of the accident were in dispute.

On the plaintiff’s version of events, she indicated her intention to perform the u-turn, slowed and checked for oncoming traffic (including performing a shoulder check) before commencing the u-turn. She did not observe the Hilux. She alleged that the first defendant failed to give way to her vehicle whilst attempting to overtake and collided with her vehicle as a result.

On the first defendant’s version of events, the plaintiff’s vehicle performed a u-turn immediately in front of his vehicle at such a time that he was unable to take evasive action to avoid a collision. He estimated that, having recently turned a corner, he was travelling at no more than 35 – 40km/hour at the time of the collision.

It was common ground that the point of contact between the two vehicles was to the front left side of the Hilux and the mid-section of the driver’s side of the plaintiff’s vehicle.

The primary factual issue in dispute was the location of the plaintiff’s vehicle on the roadway at the point of impact. This finding would inform which version of events was more likely and ought be preferred.

There were two witnesses to the aftermath of the collision. Each provided evidence as to the location of the vehicles on the roadway immediately after the collision which was more consistent with the first defendant’s version of events.

There was a level of doubt cast over the plaintiff’s version not only by the witnesses, but also by the inconsistency between the version of events she gave in the immediate aftermath of the accident as part of her workers’ compensation claim and the version which evolved in the lead up to and during the trial.

The decision

His Honour Judge Coker held that in to accept the plaintiff’s version of events, there must be a credible basis upon which the apparent consistency between the evidence of the first defendant and the two independent witnesses can be explained away.

His honour found no credible basis to explain away this apparent consistency.

He found that the plaintiff’s own evidence, closest in time to the accident was somewhat inconsistent with her claim as pleaded and as advanced at trial. The statement she gave to the Townsville City Council as part of her workers’ compensation journey claim referred to the first defendant being in her ‘blind spot’. It made no reference to the first defendant travelling at an excessive speed, failing to give way to her or attempting to overtake.

In regards to the inconsistency of the plaintiff’s own evidence, Coker DJC makes reference to the discussion of ‘credibility’ by Lord Pearce in Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Reports 403 as follows:

'It is a truism often used in accident cases, that with every day that passes the memory becomes fainter and the imagination more active. For that reason a witness, however honest, rarely persuades a judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred.'

Preferring the first defendant’s version of events, Coker DCJ then considered whether, on that version, the first defendant had been negligent in any way.

He found that the first defendant:

'was entitled to proceed along the roadway and assume that other road users, including the plaintiff, would obey the road rules, and give way to his vehicle.'

'had no way of knowing that the plaintiff would act as she did. He was travelling in an appropriate manner and at an appropriate speed. He had no reason to apprehend danger…. He in no way failed to exercise due care proceeding as he did and at the speed that he did.'

More generally, His Honour commented that even the most attentive driver can find themselves in an ‘agony of the moment’ situation. In such circumstances, a collision is inevitable.

Ultimately, it was held that the plaintiff had not discharged the onus of demonstrating that the accident occurred because of any negligence on the part of the first defendant.

Implications for you

Two important issues arise from this decision for CTP insurers.

Firstly, the decision emphasises the importance of comparing a plaintiff’s initial, contemporaneous version of events with the version which emerges as a claim progresses towards trial to identify any inconsistencies.

An initial version of events may have been provided to police, ambulance attendants, hospital emergency department staff, workers’ compensation authorities, employers and property damage insurers. Scrutiny of all of these records is important.

Secondly, the decision is a reminder that a plaintiff is required to prove more than the mere fact of a collision to succeed in a CTP claim.

It has long been accepted that road users owe a duty to take reasonable care for the safety of each and every other road user and to take account of the possibility of inadvertent and negligent conduct on the part of others[1]. However, as Coker DCJ points out, there are still categories of motor vehicle accident which do not necessarily involve negligence. Thought should always be given to whether there was any reasonable course of action available to a driver to avoid a collision, having regard to the distance between the vehicles, speeds of the respective vehicles, visibility and road/traffic conditions. If not, negligence will not be proved.

Daly v Holloway and RACQ Ltd (Unreported,15 March 2019)

[1] McLean v Tedman (1984) 155 CLR 306.

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