Plaintiff successfully sues insurer for accident caused by stolen vehicle, despite credibility issues Plaintiff successfully sues insurer for accident caused by stolen vehicle, despite credibility issues

Plaintiff successfully sues insurer for accident caused by stolen vehicle, despite credibility issues

22 November 2021 | Compulsory Third Party (CTP)
Tags CTP

A plaintiff succeeded in a claim against the insurer for personal injuries sustained in a motor vehicle accident caused by a stolen vehicle, notwithstanding credibility issues. 

Background

The plaintiff suffered injuries to his lower back and right shoulder as a result of a motor vehicle accident which occurred on 8 October 2018, after a stolen car collided with the rear of his vehicle. The plaintiff brought a claim against the Transport Accident Commission, the CTP insurer of the stolen vehicle. Both liability and quantum were issues to be determined by the Court.

The insurer’s case focused on attacking the plaintiff’s credibility, with respect to his evidence of the circumstances of the accident and his claim for damages.

Credibility Issues

The insurer’s attack on the plaintiff’s credit started after he was called into question about his economic loss claim. The payslips, which the plaintiff sought to rely upon for his claim, were found not genuine and had been prepared by an unknown person to assist him in obtaining a loan. The payslips were also entirely inconsistent with the plaintiff’s tax returns which showed a significantly lower figure of annual income. Next, the insurer moved to the history of the vehicle that the plaintiff was driving when the accident occurred. The documentation relating to registration and insurance of the vehicle revealed that the plaintiff’s minimisation of the market value of the vehicle was done to reduce Territory revenues and the high insured sum was to gain a maximum return if the vehicle was destroyed or stolen. The Court found the insurer was successful in discrediting the plaintiff in respect of his economic loss claim, such that the effect of this could be transferred to his allegations of the accident circumstances.

Liability

The accident occurred when the plaintiff was driving in a northerly direction along Mugga Lane. He noticed a vehicle (Toyota Prado) that was driving very fast and closely behind him and had its lights on high beam. He could not immediately pull over but did so when an opportunity arose. He stopped his car in a position partly encompassing a bicycle lane. Instead of overtaking him, the Toyota collided with the rear of his vehicle and then left the scene. The plaintiff did however photograph the departing Toyota with his mobile phone. The plaintiff later called 000 but was told his situation was not an emergency and was advised to report the accident to the local police station. He did so, and the police identified the Toyota as belonging to the insured and had been reported as stolen the day before the accident.

The plaintiff’s pleaded case was simple, but what was an apparently straightforward rear-end collision was comprehensively investigated and questioned by the insurer. The insurer denied the accident occurred as alleged by the plaintiff and seemed to suggest he was fraudulent, although the insurer chose not to plead fraud. Rather, a concentrated credit attack was put forward to render the plaintiff’s evidence unbelievable. The insurer suggested there was a sequence of facts which simply could not have occurred, thus making the plaintiff’s version incapable of acceptance.

The insurer commissioned and relied upon a report from an accident reconstruction expert, Mr Urquhart. There was a distinct emphasis on exactitude to defeat estimates given by the plaintiff of matters such as speed and the distance that he was pushed forward after the collision, leading Mr Urquhart to express scepticism about the plaintiff’s version of the accident. In addition, the insurer also put to the plaintiff that there were many safer locations to pull over than that which he chose. In determining the issue of liability, the Court raised concerns that Mr Urquhart’s report had conclusions based on surmise and speculation. The Court also had regard to the inspection report completed by NRMA after the accident, which concluded that “the forensic evidence indicates that the Audi and Toyota have impacted each other in a manner that is consistent with a collision between two vehicles and consistent with the collision circumstances.” Ultimately, the Court favoured the plaintiff’s evidence. The Court found that the circumstances leading up to the collision were such that the plaintiff was put in a position of being harassed by the Toyota. Whilst it could be suggested there was a safer place to stop or a better estimate of speed might have been made, the Court found these conclusions rely on hindsight and the plaintiff did not have the benefit of observing the speed of the Toyota over any particular distance. Further, the plaintiff was driving on a dark road without the benefit of well-lit areas along the side of the road. The Court therefore accepted the accident occurred as alleged by the plaintiff, as there are photos of the scene and of the departing Toyota and corroboration by the plaintiff in contacting police to report the accident.

Quantum

The plaintiff advanced a claim for general damages, past and future economic loss, past and future domestic care, and medical expenses. Prior to trial, the parties agreed on the amounts for future economic loss, and past and future domestic assistance. The plaintiff was self-employed as a painter and operated his own painting business. He was in good health prior to the accident. He alleged he sustained injuries to his lower back and right shoulder in the accident. The insurer challenged the extent of his injuries and raised causation issues with respect to the right shoulder. The court considered evidence from several medical experts in that regard. Dr Damiani, orthopaedic surgeon, who the plaintiff was referred by his general practitioner for review of his shoulder, noted a traumatic tear to the shoulder and recommended shoulder surgery. Dr Machart, orthopaedic surgeon, assessed the plaintiff at the request of the insurer, and expressed concerns about the extent of the plaintiff’s low back injury and the causation of the shoulder injury.  Dr Eaton, occupational physician, and Dr Pillemer, orthopaedic surgeon, both assessed the plaintiff at the request of his solicitors. Dr Eaton considered the lower back injury was consistent with the accident, and the rotator cuff injury to the shoulder injury required surgical repair. Dr Pillemer confirmed the diagnosis of a rotator cuff injury and injury to the lower back. The Court preferred the opinions of Doctors Eaton, Pillemer and Damiani over that of Dr Machart. The Court was satisfied the plaintiff suffered both a rotator cuff injury to his right shoulder and a soft tissue injury to his low back. Accordingly, the Court made allowances for both injuries in the assessment of damages.

The plaintiff attempted to establish a significant economic loss claim, which was not substantiated. He claimed that he had not worked since the accident other than about 3 weeks prior to trial when he tried to do some painting for 4 days. He alleges the pain prevented him from continuing in his occupation as a painter. Past economic loss was the most contentious head of damage. The plaintiff advanced a significant claim for economic loss whilst the insurer only allowed a nominal amount. The insurer’s case was founded on two premises. Firstly, that the damages should be limited to the effects of the low back injury, and secondly the plaintiff’s evidence on his economic loss was so discredited that the Court could not be satisfied about any element of his claim. The insurer also raised a failure to mitigate argument, in that there was no reason why the plaintiff could not have returned to that portion of his pre-accident occupation which involved providing workers to other contractors as that work did not involve any physical activity. Whilst the Court found there was substance to the insurer’s arguments, the Court still awarded the plaintiff a moderate sum for past economic loss.

Findings

In summary, the Court held:

  1. The accident occurred in the manner as claimed by the plaintiff.
  2. The insurer is liable for the actions of the driver of the stolen vehicle.
  3. The plaintiff is entitled to an award of damages in the amount of $181,500.00.

Implications for you

This case demonstrates that, despite the insurer putting the plaintiff’s credibility into question and denying the accident occurred, the plaintiff may still succeed against the insurer and be awarded damages.


Kilani v Aluabaid [2021] ACTSC 90

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Thao Ho

Thao Ho

Senior Associate