Written by Liz Breaz
In the matter of Marshall v Corbett & Anor [2023] QDC 211 the Court provided a timely reminder on the importance of carefully reviewing the strength of a liability witness together with all surrounding information.
In this matter, the Plaintiff commenced civil proceedings for damages arising out of a motor vehicle accident. One of the key issues before the Court was making a finding on the factual circumstances of the collision and who was at fault.
On 3 June 2019, the Plaintiff was driving his motorcycle along South Pine Road in Enoggera, Queensland, when he collided with a motor vehicle which he alleged had pulled out suddenly from the shoulder of the road without warning. This allegation was denied.
The Evidence
The Plaintiff partook in two police interviews, the first being on the collision date and the second 16 days after the collision at the Plaintiff’s request. The Plaintiff’s evidence in Court was consistent with his first police interview, notably, that he had been looking ahead at the traffic lights on the road when the Defendant’s vehicle had pulled out in front of him, from a stationary position on the left side of the road, and without warning, thereby precluding the Plaintiff from avoiding the collision despite braking hard. The Plaintiff impacted the front driver’s side door of the vehicle, and was thrown over the vehicle before landing on the other side of the road.
Conversely, the Defendant gave evidence she had also been travelling west and ahead of the Plaintiff by some distance as she had intended to turn right onto the driveway of a Church. Once she had commenced the turn, her vehicle was impacted by the motorcycle. The Defendant believed her vehicle was located somewhere between the centre line and the driveway at the point of impact. The Plaintiff was travelling close to the centre line also as per the Plaintiff’s own evidence.
A nearby resident did not witness the collision but heard loud sounds and went outside her home to witness the Plaintiff lying on the ground and the Defendant’s stationary vehicle in the middle of the road. She believed the vehicle to be opposite her driveway rather than the driveway leading into the Church, which the Plaintiff argued supported his version of events.
The Plaintiff was travelling in an active School Zone which restricted the maximum speed to 40 kilometres per hour. The road consisted of a single lane of traffic in each direction. The Plaintiff stated his usual practice when entering a School Zone was to reduce speed, however, on the collision date the Plaintiff stated to police that he did not recall the speed he was travelling at the time of collision and that he had been travelling around 50-60 kilometres per hour.
Further inconsistencies arose with the Plaintiff’s version at the second police interview when the Plaintiff was presented with the Defendant’s version. The Plaintiff conceded the Defendant’s version ‘made sense’ and he had seen a vehicle travelling in front of him, but he was looking at the traffic lights ahead and when he noticed the vehicle had slowed down, he was unable to stop in time to avoid the collision. The Plaintiff submitted at the time of the second police interview, he was affected by pain and otherwise intimidated by the police.
The Court’s Findings on Liability
Without being critical of the Plaintiff, the Court found his recollection was not accurate regarding the positioning of the Defendant’s vehicle following the collision. Nor did the Court expect the witness to place importance on such details.
The Court found the Plaintiff to be ‘unimpressive’ as he had little memory as to the collision details and had rather reconstructed the event in his mind. The Plaintiff stated that he felt intimidated or affected by pain which resulted in inaccurate information being advised to the Police on the second occasion. The Court reviewed the recordings of the Plaintiff’s interviews with the police and was ‘not able to discern anything from his answers, comments or demeanour which would support such assertions’.
The Court found the Plaintiff had been travelling in excess of the speed limit and focusing on the traffic lights ahead which prevented him from paying attention to the road immediately in front of him until it was too late. Accordingly, the Defendant was not negligent for the collision nor was there scope for contributory negligence. The Plaintiff’s claim was dismissed.
Key Considerations
It is important to consider the strength of your witness, particularly if your witness is unable to provide clear details regarding the collision immediately following or shortly after it take place, as was the case in this matter. The Plaintiff had given a contemporaneous interview with the police and was unable to state whether he believed the Defendant’s vehicle had been stationary on the side of the road or had come from a nearby driveway to justify the vehicle being ahead of him in the same lane, indicating a lack of awareness of the Plaintiff’s surroundings. Further, the Plaintiff was unable to clearly state his speed.
In that regard, it is important to clarify with your witness whether the information provided regarding a collision is their actual memory of the collision or whether it is their general driving practice for similar roads or familiar roads.
Further, if it is known that your witness has spoken to the police or other experts (medical, accident reconstruction etc.) with respect to the collision, it is crucial to obtain copies of the relevant footage or notes taken in addition to any final reports produced, as these records may contain observations or information otherwise not included.
For claims officers, a lodgement version or a detailed written description of the accident is often not sufficient to determine the strength of a position. Conducting your own interview or collection of independent materials such as photographs will assist. Otherwise, you may be left with a witness who lacks sufficient credibility to support a Court finding in an insured’s favour.
If you wish to discuss this decision, please contact Doran Yacobi on 03 9947 4504 or any member of the Ligeti Partners team on 03 9947 4500.
