In the recent case of Greentree v Nominal Defendant [2024] QDC 99, the injured plaintiff was travelling along the Bruce Highway at Sippy Downs (Sunshine Coast). He alleged that an unidentified white car overtook him, then veered back into his lane and suddenly braked. This caused the plaintiff to brake, to swerve to the right, over-correct, lose control and veer off the road to the left.
The plaintiff commenced a compensation claim because he alleged that he suffered injuries because of the negligence of the driver of the unidentified vehicle.
In Queensland, it is possible to seek damages for injuries even if the negligent driver cannot be identified (think hit and runs). In these circumstances, the proceeding will be brought against the Nominal Defendant. This is essentially the Queensland Government.
To succeed with a claim against an unidentified driver, a plaintiff must prove that proper search and enquiry was undertaken to attempt to identify the driver. (It depends on the individual circumstances of each case as to what amounts to proper search. For example, if there is a nearby petrol station, it may be necessary to attempt to obtain security footage which may have recorded the movements of the negligent driver).
Secondly, assuming proper search was done, the court must be satisfied on the balance of probabilities that the injured plaintiff’s version of events can be accepted. In other words, the plaintiff is telling the truth. Where there are no independent witnesses (as in this case), the plaintiff’s credibility becomes central.
In this particular case, there were no other witnesses. The judge considered the totality of the evidence in order to form a view about the plaintiff’s credibility.
The first major issue for the plaintiff was that his description of the incident seemed very improbable. He said he was travelling at about 100 kph when the unidentified driver came out of nowhere, abruptly overtook him, then pulled in in front of the plaintiff so that he was not even a car length in front of the plaintiff, and then slammed on the brakes so hard that the plaintiff could see the back of the car rise.
Under cross-examination the plaintiff was asked, in those circumstances, how he could possibly avoid hitting the car, to which he responded, “I’ve done a defensive motor vehicle course before.”
Moreover, there were major inconsistencies in the plaintiff’s story concerning his medical condition prior to the accident and after it. In the lead up to the trial, the plaintiff was examined by several doctors (who provided expert evidence). To each of those doctors, the plaintiff essentially stated that prior to the accident his back was fine. He alleged that as a result of the accident, his lower back and neck gradually got worse and worse which prevented him from playing rugby, going out on his boat, fishing, camping and just being outdoors.
The defendant obtained the plaintiff’s chiropractic records. These contained a “new patient form” (this is the document you fill out every time you visit a GP or allied health practice for the first time). The form asked the plaintiff why he had come to the chiropractor. His answers were:
1. “Back pain, 15+ years, 75% of the time (pain is present) and is getting worse;”
2. “Migraines since a child 50% of the time, getting worse;” and
3. “Aches and pains 15+ years, 85% of the time, getting worse.”
At trial, counsel for the Nominal Defendant asked how the plaintiff reconciled his statements made to the expert medical witnesses that prior to the accident his back was “fine” against the chiropractor’s records which showed that he had had significant back pain over a long period of time. His answer was that he didn’t mention anything about his previous back pain because the chiropractor had fixed it. He was then asked how many times he went to the chiropractor and he said only once. He was then asked if it was really his evidence that 15+ years of back pain was fixed by one visit to the chiropractor. The plaintiff responded that one visit to the chiropractor fixed his issues so that prior to the car accident he was fine.
Unsurprisingly, the court found it difficult to accept the plaintiff’s evidence. There were many other aspects of the plaintiff’s medical records as well as his financial documents which contradicted the plaintiff’s verbal evidence given at trial.
Overall, the court found that the plaintiff was not a credible witness and in these circumstances was not satisfied on the balance of probabilities that the plaintiff’s reporting of the accident could be accepted. The plaintiff lost the case.
