Imperfect plaintiff found credible: Spencer v Downie and Anor  QSC 9825 June 2019 | Compulsory Third Party (CTP)
On 21 February 2013, the first defendant, Noel Downie, was travelling in his truck (prime mover with trailer) along the Burnett Highway.
The plaintiff, Chris Spencer, was on a Yamaha motorbike travelling behind the truck.
The plaintiff’s version was that he began to overtake the truck on the right hand side, after checking it was safe to do so.
However, just as the plaintiff was about to overtake, the first defendant was intending to turn right into a driveway. His version was that he checked in front and behind before turning his indicators on and starting the low speed turn.
In order to avoid a collision, the plaintiff braked heavily and skidded on the road suffering injuries including a closed head injury, fracture clavicle, internal injury and a shoulder injury.
A claim was lodged against the CTP insurer (second defendant), AAI, as a result of the plaintiff’s injuries.
Liability was denied by the insurer. The argument was that the first defendant had its indicator on and had commenced the right hand turn before the plaintiff attempted the overtaking manoeuvre.
The plaintiff, on the other hand, said the truck driver did not have its indicator on and had made an unsafe turn.
Whether or not the first defendant had activated his indicator was relevant to causation and contributory negligence.
The judge considered that the liability arguments “turned entirely upon an assessment of the respective credit” of the plaintiff versus the first defendant.
The judge considered that the contemporaneous evidence in this case was very important.
The plaintiff was interviewed by the police on the morning of accident while he was in hospital – despite being under morphine and against the protests of nursing staff. In that interview, the plaintiff was adamant that he didn’t see an indicator or brake lights on the truck.
The judge was convinced by this version, stating that it was a “powerful prior consistent statement recorded while Spencer was at the serious disadvantage of being injured and having been administered morphine.” It was considered that this statement was consistent with the plaintiff’s evidence at the trial.
Despite the fact that the truck driver had driven along that stretch of road three times a week for 40 years, the judge rejected the defence case that the indicator had been activated because:
- The first defendant provided inconsistent evidence at the trial about whether or not he saw the plaintiff
- The first defendant told the court what his usual indicating practice was, not what happened on the date of the accident
- The first defendant said that he looked around before he commenced the turn – this was rejected because he would have seen the plaintiff if he had done so
- The first defendant had no reason to put his indicator on as he said he could not see any traffic on the road
In an attempt to undermine the plaintiff’s case, the defence called a retired truck driver to the stand, Douglas Leifels. Mr Leifels said that he had seen the plaintiff on the road earlier, overtaking him at around 120km/h on one wheel. The plaintiff was adamant he did not do this and again, the plaintiff was accepted by the judge.
The defence also attempted to attack the plaintiff’s credit on the basis that he had failed to lodge tax returns for several years, and he had a significant traffic/criminal history (2 x speeding fines, 3 x drink driving charges, 2 x assault causing injury).
However, the judge did not think the traffic record had any impact on the truth of the plaintiff’s evidence. He thought the assault convictions did not impact on his honesty or reliability of the plaintiff’s evidence.
Further helping the plaintiff, his long time employer gave evidence that he was a great and reliable worker and they intended to give him the business when they retired.
The judge thought that if the plaintiff had seen the indicator and had attempted to overtake the truck anyway, that was “suicidal conduct”.
Negligence was found against the first defendant, and quantum was assessed at $63,9127.99. There was no finding of contributory negligence.
The plaintiff was an electrician prior to the accident. He was deemed incapable of returning to manual labour. He had no experience in sedentary work. He received $480,000 for economic loss (for the past and future).
Indemnity costs were awarded against the second defendant.
The matter is currently being appealed by the insurer.
Take home message
It is sometimes difficult to predict how witnesses will present at trial. In the Court’s view, the defendant in this matter failed to provide a consistent version of how the accident occurred. While his legal team clearly had relied on him being a reliable witness at trial (hence the denial of liability and lack of any settlement offers), his version was not preferred.
The decision emphasises the importance of contemporaneous accounts from the parties.
In addition, this decision is a reminder that judges are generally reluctant to find injured plaintiffs to be not credible (particularly in the face of serious injury). Here, the defence sought to attack the plaintiff’s credibility by producing his criminal history, traffic history, and evidence relating to his failure to lodge tax returns. That information was not enough to create doubt for the Court about the plaintiff’s version in the face of a consistent account of the circumstances.