Recalling the accident: Why you need to be honest and accurate

A key part of any personal injuries claim is the need for the injured person to provide evidence about their recollection of the accident. A claimant is often required to recount the accident multiple times, such as when reporting to police, in claim forms, or even at trial.

Discussing the details of an often traumatic, life-altering event can be difficult for many claimants. As a result, claimants sometimes “fill in the gaps” in their story with assumptions. Doing so can distort the truth and can devastating diminish a claimant’s credibility.

Find out the importance of honest and consistent disclosure in this summary of one of our recent cases.

The facts

Our client was an experienced electrical tradesman and motorcycle rider, operating out of Mundubbera in the North Burnett region of Queensland. 

One morning, he was riding his motorcycle to work along a long, straight section of the Burnett Highway. Near the town of Eidsvold, he approached a slow-moving semi-trailer from behind. Checking the road ahead for oncoming vehicles, he saw that it was safe to overtake the semi-trailer and indicated his intention to do so. 

As he began to overtake, the semi-trailer started to make a right turn into a private driveway (without indicating).

Our client braked heavily to avoid a collision, losing control of his motorcycle and crashing into a drain on the side of the highway.

He suffered a number of serious injuries to his head, lungs, stomach hip and limbs as a result of the accident. He also underwent a splenectomy (an operation to remove his spleen), leaving him with a significant lifelong risk of an infection or associated disorder. Unable to perform the manual labour required of his profession, our client was forced to cease working.

Our client brought a personal injuries claim for compensation. The claim proceeded against the compulsory third party (CTP) insurer of the semi-trailer.

The arguments

Our client’s argument

Our client argued that the semi-trailer driver was negligent because:

1. He failed to use his indicators;
2. He failed to use his rear mirrors to look out for other road users;
3. He attempted to turn off the road when it was not safe to do so;
4. He generally failed to exercise proper care and control in driving the semi-trailer.

The semi-trailer driver’s argument

The representatives for the semi-trailer driver argued that:

1. He did use his indicators;
2. Our client crashed before the semi-trailer started turning;
3. Our client attempted to overtake at an excessive speed and in a dangerous manner.

The judgment 

The trial judge ruled that the accident, and the injuries suffered by our client as a result, were caused by the negligence of the semi-trailer driver.

The judge agreed with our client that the semi-trailer driver was negligence because:

1. He failed to use his indicators;

2. He failed to keep a proper lookout for other road users before turning;

3. He started turning when it was not safe to do so.

The judge also rejected the argument that our client was contributorily negligent. In other words, the judge did not believe our client contributed to the accident by his own negligence. The judge found that:

1. Our client was not overtaking unsafely;

2. Our client was travelling at a speed in the vicinity of 100 kilometres per hour which was not excessive in the circumstances;

3. Our client did not fail to observe the semi-trailer’s indicators – they just weren’t used;

4. Our client’s loss of control of the motorcycle was not his fault as he was facing an emergency.

What did the judge rely on?

The trial judge placed a lot of emphasis on the reliability and credibility of the evidence given by our client versus the evidence given by the semi-trailer driver.

Our client’s evidence: Reliable

The judge found that our client’s evidence “…a plausible and consistent version of facts and provided…in a credible manner”.

At every point in the claims process, our client provided consistent observations about:

• the speed of the semi-trailer;

• the distance between him and the semi-trailer at the time it came into view;

• the lack of indicating by the semi-trailer.

Our client’s honesty throughout the claim (including during a police interview and during trial) made the judge believe he was credible and reliable. Our client even admitted to things against his own interests (including that he was running late to work and may have been speeding), which made the judge believe he was honest.

The semi-trailer driver’s evidence: Unreliable

The judge found that the semi-trailer driver’s evidence “…contained substantial inconsistencies, including differing versions of the time at which he had activated his indicators and the position of the respondent when the first appellant observed his motorcycle.” The trial judge believed that the evidence from the semi-trailer driver was simply a “reconstruction based on past common practice.” 

In other words, the semi-trailer driver gave evidence based on what he usually did when driving the semi-trailer, rather than the specific actions he took on the day in question. 

The semi-trailer driver also avoided some questions, and was inconsistent at times. For example, he said things during trial that was inconsistent with things he had said earlier (such as to police).

The trial judge found the semi-trailer driver to be unreliable.

The OUTCOME

In a great result for our client, the trial judge awarded our client $639,127.99.

The representatives for the semi-trailer driver tried to appeal (dispute) the outcome, but the appeal was dismissed by the Queensland Court of Appeal.2

With this sizable about of compensation, our client was able to take steps towards getting his life back on track.

Take Home Message

Our client secured this fantastic outcome because he was honest and consistent in recounting the accident. The Court found that, because of these qualities, our client was a highly credible witness and his version of events was more persuasive than version provided by the driver of the semi-trailer. 

This shows us how important it is to be honest and accurate when providing evidence. Whether you’re giving information to police, your lawyer or a court room; honesty and consistency goes a long way.

If you need help after an accident, or you just want some more information, feel free to contact us. Our friendly team will assist you however we can.

[1] Spencer v Downie and Anor [2019] QSC 98