8 October 2019

A Case of Identity: Was Justice Served?

Lee v Lee; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited [2019] HCA 28 (4 September 2019) John Harvey
John Harvey Compensation Lawyer

An interesting case has been heard in the High Court of Australia where the only issue between the parties was the identity of the driver of the “at-fault” vehicle at the time of a motor vehicle accident on North Stradbroke Island on 25 September 2013.

A family of Taiwanese immigrants were driving in a Toyota Tarago. It collided with an oncoming Nissan Patrol at a bend on a narrow road. The Nissan swerved to its left but the Tarago swerved to its right causing a head-on collision.

A 17-year-old youth in the Tarago was severely injured and was left with partial tetraplegia. The CTP insurer, RACQ Insurance, reached an agreement that the youth, Lien-Yang Lee, was entitled to $3.35 million compensation if he was not the driver of the Tarago. But RACQ Insurance believed that Lien-Yang was the driver, not his father as alleged by the family.

Within 30 to 90 seconds of the collision, the driver of the Patrol, after moving his dog away, returned to the vehicles. There was no one in the driver’s seat of the Tarago, but he saw Lien-Yang’s father standing in the Tarago attempting to help the three children in the second row of seats, including Lien-Yang.

The scene of the crash on North Stradbroke Island on September 25, 2013 (Source: RACQ CareFlight Rescue)

In just less than an hour, a police officer attended and took notes. He recorded that Lien-Yang’s father had been in the driver seat and Lien-Yang behind him.

Another investigating police officer arrived much later at the scene when all of those persons involved in the collision had departed. That police officer was, unfortunately, given some misinformation that the occupants of the Toyota had not been cooperative in identifying the driver. He also noticed blood on the driver’s airbag and that the driver’s seat belt was buckled. So in a subsequent report he stated the driver of the Tarago was unknown.

Subsequent testing of the blood on the airbag determined that it was Lien-Yang’s blood. He and his father asserted that the blood most likely came from his father’s hands after handling his son following the accident. Indeed, one witness saw the father cradling Lien-Yang and recalled seeing bright red blood on Lien-Yang’s face. The seatbelt could have been buckled at any time after the accident for various reasons including simply to move it out of the way. In any case, RACQ Insurance accepted that the driver (whoever it was) was wearing a seatbelt at the time the accident.

The blood on the airbag and the doubts expressed in the police report presumably led RACQ Insurance to develop the theory that Lien-Yang was driving at the time of the accident and was moved by his father into the rear seat subsequently. In those circumstances, RACQ Insurance decided that it was not obliged to pay compensation to Lien-Yang as he was the at-fault driver himself.

The trial judge accepted the viewpoint of RACQ Insurance. Lien-Yang appealed that decision. The Queensland Court of Appeal declined to overturn the trial judge’s decision. It acknowledged that the evidence was finely balanced but was not prepared to interfere with the trial judge’s decision, despite finding some critical errors in the trial judge’s findings. The Court of Appeal thought it was “much more likely” that Lien-Yang was not the driver of the Tarago, except for the evidence of his blood on the airbag.

The High Court found that the Court of Appeal failed to properly reconsider the evidence before the trial judge. On the Court of Appeal’s analysis, it was unlikely that Lien-Yang had been pulled from the driver’s seat to the passenger seat immediately behind in something less than 90 seconds.

It was only Lien-Yang’s blood on the airbag that countered the conclusion that the father was, in fact, the driver. But there were factors involving the location of the blood on the airbag which made that evidence less than conclusive. In particular, there were no bloodstains on the central front portion the airbag, facing the driver. In fact, some of the blood was on that side of the airbag which would have been facing the windscreen when it deployed.

Overall, the High Court found that the Court of Appeal had enough evidence before it to decide that the father had been driving the Tarago as the evidence from the other driver was not weakened, much less contradicted, by the presence of Lien-Yang’s blood on the airbag.

There was a lot of money at stake for RACQ Insurance, but it chose to spend a lot of money to avoid paying compensation, on the basis of what turned out to be rather circumstantial evidence when opposed to the evidence of the witnesses who were at the scene at the time of the accident or very shortly afterwards.

Was justice served?



Read the High Court’s full judgement here.

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).

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