Case summary: Lee v Lee & Ors [2017] QSC 42

Published 15 Jan 2018

The case of Lee v Lee & Ors [2017] QSC 42 is a motor vehicle accident compensation claim that went all the way to the Supreme Court of Queensland. In this matter, the Plaintiff alleged that on 25 September 2013 he was a passenger of a motor vehicle being driven by the first defendant when the vehicle was involved in a head on collision and he sustained serious spinal and facial injuries.

The parties in the proceedings were able to come to an agreement on the quantum of the plaintiff’s damages, however liability remained in an issue as the parties disputed the identity of the driver of the vehicle. The Plaintiff contended that the first defendant was the driver of the vehicle. While the third defendant contended that the Plaintiff was driving the vehicle.

The Plaintiff gave evidence at trial and called a number of witnesses to contend that he was not the driver of the vehicle. The witnesses included the plaintiff’s two brothers who were present in the vehicle at the time of the accident. However, His Honour, when taking the evidence of the witnesses into consideration noted at paragraph [197]: “that evidence does not assist in determining who was driving at the time of the collision. Both siblings fell asleep shortly after leaving Brown Lake. Neither could say who was driving the Tarago at the time of the collision. I do not accept that a change of driver’s could not have occurred without their knowledge”.

More notably, His Honour took into consideration the plaintiff’s blood which was found on the deployed driver’s airbag of the vehicle. The issue raised by the Second Defendant was if the Plaintiff was not the driver, then how did his blood come to be on the deployed airbag? It was suggested that the blood perhaps was deposited their by another source after the collision occurred.

Dr Frank Grigg, an engineer, was called to give expert evidence after making an assessment of the safety devices of the vehicle “to determine their likely effectiveness in a collision of this nature and whether the injuries sustained by the Plaintiff and the first defendant we’re consistent or inconsistent with either being the driver of the vehicle at the time of the collision”. At paragraph [106] to [107] His honour explained that Dr Grigg’s assessment “revealed the airbag was made of nylon and contained flaps which minimised the risk of the driver being struck by hard plastic pieces of the assembly upon the deployment of the air bag” and “in his opinion, the fact the driver’s airbag deployed in the collision reduced the likelihood of the driver of the vehicle would suffer facial injuries of the nature sustained by the plaintiff”.

His Honour took all the evidence into consideration and at paragraph 189 concluded that “I accept the blood found on the driver’s deployed airbag of the vehicle was the plaintiff’s blood”. His Honour questioned how the plaintiff’s blood could have come to be on the driver’s deployed airbag and did not find either the plaintiff or the second defendant reliable and credible witnesses and neither of their evidence “provides an explanation for the presence of the plaintiff’s blood on the deployed driver’s airbag”. His Honour noted at paragraph [203] that “the plaintiff had sustained facial injuries which resulted in significant bleeding initially. Direct contact between the deployed airbag and the plaintiff’s face would be probable reasons for the presence of the plaintiff’s blood on the deployed airbag”.

His Honour concluded that a consideration of the evidence as a whole satisfies, that on the balance of probabilities, the plaintiff’s blood was deposited on the airbag by direct contact and therefore the plaintiff was the driver of the vehicle at the time of the collision. Judgement was made in favour of the third defendant.

If you have been involved in a similar accident and have suffered serious injuries, you may be entitled to compensation for your injuries. For a free, no obligation consultation, contact Gerard Malouf and Partners Personal Injury Lawyers to arrange a free consultation with one of our Personal Injury Specialists.

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