The plaintiff sustained catastrophic spinal injuries in a motor vehicle accident on 25 September 2013. Central to the determination of liability was whether the plaintiff aged 17 years and unlicensed at the time of the accident, was the driver or if it was his father.
The matter first came before Dalton J in Lee v RACQ Insurance Limited  QSC 120 pursuant to an application under s 51(3) of the Motor Accident Insurance Act 1994 to continue to fund rehabilitation services. The insurer alleged in effect fraud, namely that blood on the airbag was the plaintiff’s and not the father’s, and hence, the plaintiff was driving, and payment of expensive rehabilitation services ($200,000.00) should cease. Dalton J determined that the meaning of s 51(3) was such that once payments had commenced, they could not cease when the issue in dispute was yet to be determined at trial. On the application, the plaintiff’s family provided sworn affidavits that the plaintiff was not driving. While Dalton J found the evidence of the blood on the airbag as strong and against the plaintiff, in balancing the purpose of the Motor Accident Insurance Act 1994 her Honour was not prepared to cease the rehabilitation pending the trial.
The ultimate issue came before Boddice J and his Honour found against the plaintiff and his parents on the cross-claim brought by the insurer. Central to the finding of the blood on the airbag was the acceptance by his Honour of a number of forensic experts and Dr Weidmann, that the blood was the plaintiff’s and the injuries were consistent with being hit by an airbag while unrestrained by a seatbelt.
If the facts were not intriguing enough, the father did not give evidence in the trial, although he attended each day. Each side sought to have an adverse inference drawn pursuant to Jones v Dunkel for not calling the father, the alleged driver. However, his Honour declined to do so, and found the weight of the evidence sufficient to make the ultimate finding without recourse to an adverse inference:
 Both the plaintiff and the third defendant submitted that the failure of the other to call the first defendant in each other’s case was capable of giving rise to an adverse inference pursuant to the principle in Jones v Dunkel. That principle provides that in certain circumstances, the unexplained failure by a party to call a particular witness may lead to an inference that the uncalled evidence would not have assisted that party’s case.
 The appropriate circumstances in which such inferences are to be drawn are strictly framed as disputes of fact are properly to be determined according to the evidence adduced at trial not on the basis of speculation as to what other evidence might possibly have been led. Central to such appropriate circumstances is a requirement that the case be one where “the missing witness would be expected to be called by one party rather than the other” or where it was known that the witness’s evidence “would elucidate a particular matter”.
 The plaintiff submits those conditions are not met as the third defendant had an obligation to call the first defendant as one of its insured persons. I do not accept there is such an obligation in the present case. I am satisfied there is a reasonable explanation for the third defendant’s failure to call that witness. The third defendant, on reasonable grounds, believed the first defendant had given an untruthful account to its investigator. It is not reasonable to expect, in such circumstances, that an insurer would call in its case a witness whose account was untruthful. That conclusion is not altered by the insurer’s statutory right to apply to cross-examine the first defendant. The calling of an untruthful witness is not made appropriate by the existence of a right to then cross-examine that witness.
 The conclusion that the plaintiff was the driver of the Tarago at the time of the collision could be fortified by the plaintiff’s failure to call the first defendant as a witness in the plaintiff’s case. The first defendant could give relevant evidence, directly supportive of the plaintiff’s case. The first defendant was present in Court each day. He lives with the plaintiff. No satisfactory explanation was given for the failure of the plaintiff to call that witness.
 One explanation proffered was that the first defendant is an insured person and therefore a witness to be called by the third defendant. That consideration also applied to the second defendant. The plaintiff had no hesitation in calling the second defendant in his case. In the circumstances, a reasonable explanation for the plaintiff’s failure to call the first defendant in his case is that the first defendant’s truthful evidence would not have assisted the plaintiff’s case. However, the first defendant had already given a version on oath to the insurer’s investigator. That version was tendered in evidence. That version provides another explanation for the plaintiff’s failure to call the first defendant as a witness.
 In the circumstances, I decline to draw any such adverse inference against the plaintiff. The conclusion that the plaintiff was the driver of the Tarago at the time of the collision is reached without any reliance upon the drawing of any adverse inference from the failure of the plaintiff to call the first defendant in his case.
Finally, his Honour determined the parents, the first and second defendants to the cross-claim were also complicit in the dishonest representations and that the rehabilitation paid by the insurer, was paid in reliance of the deceit. Judgement was also entered for the insurer on the cross-claim.
David Cormack – Brisbane Barrister & Mediator
NB: appeal dismissed –
Fraser, Philippides, McMurdo JJA
The appellant sustained severe injuries in September 2013 as a result of a motor vehicle accident. Relevantly, the parties agreed on quantum and that the accident was caused by the negligence of the driver of the Toyota involved in the collision. The sole issue for the trial judge was whether it was the appellant or the appellant’s father who was the driver of the Toyota.
Dismissing the claim, the trial judge found that it was the appellant who was the driver. The question for the Court was whether that finding was correct.
The respective arguments
McMurdo JA summarised the appellant’s arguments, inter alia, as follows:
 For the appellant, it is acknowledged that ordinarily, a trial judge is in a better position than an appellate court to assess the credibility of witnesses. That is one of the “natural limitations” that exists in the case of any appellate court proceeding wholly or substantially on the record. But it is argued, citing Goodrich Aerospace Pty Ltd v Arsic, that “great care must be exercised in making demeanour findings … where a witness is from a different cultural and ethnic background to that with which the judge is familiar.” Further, it is said that the judge’s difficulty in assessing the credibility of the appellant’s mother was increased by the fact that she gave evidence through an interpreter. The appellant also refers to the judge’s error in saying that the appellant’s evidence was given through an interpreter, which is said to affect the weight of his Honour’s finding that the appellant was evasive and particularly guarded in his responses.
As for the respondent’s, his Honour stated:
 … It remains the duty of courts conducting an appeal by way of a re-hearing to “conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons” and to perform the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect.” Having conducting the appeal by way of re-hearing, and having made proper allowance for the advantages of the trial judge, appellate courts are authorised and obliged to discharge their appellate duties if they conclude that an error has been shown. The joint judgment in Fox v Percy explains not only the limitations of appellate courts, but also the limitations on the weight to be given to expressions by trial judges about witness credibility upon the basis of appearances.
Ultimately, McMurdo JA dismissed the appeal, reasoning as follows:
 I accept that the demeanour of the appellant’s mother was to be given less weight for the fact that she gave her evidence through an interpreter. The judge was mistaken in referring to the appellant’s evidence also being given through an interpreter, but that is not to say that the judge had not been justifiably influenced by the way in which his evidence was given. The matters raised by the appellant’s submissions, in total, do not justify a disregard of the trial judge’s impression of the credibility of each of these witnesses. Demeanour can be not only unhelpful but sometimes misleading. …
As to whether the appellant’s father moved him to the driver’s seat, his Honour stated:
 … the respondent had to explain the presence of the appellant in the rear seat so shortly after the collision. Its explanation, which the judge accepted, was that the appellant’s father moved him from the driver’s seat to that seat, by lowering the back of the driver’s seat and pulling him until he was seated effectively where the father had been seated at the time of the collision.
 The trial judge said that if the father could extricate himself from the driver’s seat by the time Mr Hannan arrived, so too could the father have extricated the appellant within that time. But in my view, the removal of the appellant from the driver’s seat would have been a much more difficult exercise. Even the exercise of lowering the back of the driver’s seat would have been more difficult if done from behind it. …
 The question of whether the driver was wearing his seatbelt was potentially decisive. If the driver was not wearing the seatbelt, there being no impediment to opening the driver’s door, it is highly unlikely that the appellant would have been moved to the rear seat as the judge found.
His Honour discussed at length the evidence relating to blood on the driver’s seat airbag
 Importantly, no blood appeared on the section of the airbag which would have been immediately in front of the driver as it inflated. But that fact did not prove that the blood on the airbag had not come from the driver. …
 The written statement by the appellant’s father provided no support for the hypothesis which was argued by the appellant. But that statement did not address the presence of blood on the airbag. He said that blood on the driver’s seat could not have been that of the appellant, because the appellant was not bleeding, and that it would have been the father’s blood, as the father was bleeding from his hands. In two respects that statement was incorrect: the appellant did have injuries from which he was bleeding and which could have resulted in blood stains on the airbags had he been the driver, and the father was not bleeding from his hands, although he did have blood on his hands.
 Given the nature of the appellant’s facial and teeth injuries, it was inherently probable that his blood would be on the airbag if he was the driver. That probability is not negated, in my view, by the particular locations on the airbag of the blood stains. If the appellant was in the driver’s seat, the bleeding would have continued after the split second in which the airbag had been fully inflated. …
McMurdo JA concluded as follows:
 … The task of this Court is to rehear the case, but not without regard to the decision of the trial judge. Although there were limitations upon the use which the judge could make of the way in which the appellant and his mother gave their evidence, it is not demonstrated that the trial judge misused the advantage which he had from hearing and seeing this evidence as it was being given. The decision of the trial judge was neither “glaringly improbable” nor “contrary to compelling inferences”. The appellant’s careful and sometimes forceful arguments do not demonstrate that the decision of the trial judge was erroneous.