Diehm, Geoffrey --- "Who Was the Driver?: Circumstantial Proof in Lee V Lee" [2021] PrecedentAULA 3; (2021) 162 Precedent 4

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WHO WAS THE DRIVER?

CIRCUMSTANTIAL PROOF IN LEE v LEE

By Geoffrey Diehm QC

Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 was a claim for damages by a young man rendered an incomplete tetraplegic in a motor vehicle accident. The only factual dispute was whether he or his father was the driver. The case also involved the unusual circumstance of the defendant insurer bringing a counter-claim against the plaintiff and his parents for damages, on account of monies paid out by way of rehabilitation expenses to the plaintiff and a compromise of a claim for damages brought by the mother – a passenger in the vehicle – for deceit in the representations made by each of them regarding the son being the driver.

The judgment of the plurality (Bell, Gageler, Nettle and Edelman JJ), with whom Kiefel CJ agreed, included an elaboration on the fact-finding role of an intermediate appellate court, and on conducting an appeal by way of rehearing, in a case where the evidence was largely circumstantial.

The significance of what was said in that respect is of broad application in relation to any appeal being heard by way of rehearing.

The process of reasoning in each of the judgments that followed is instructive with respect to the resolution of factual disputes, particularly in a circumstantial case.

BACKGROUND

The plaintiff was seriously injured as a result of a head-on collision between a vehicle in which he was an occupant, a Toyota Tarago, and another vehicle, a Nissan Patrol. It was common ground at trial that the driver of the Toyota was at fault with respect to the collision. It was also common ground that the Toyota was also occupied by the plaintiff’s two younger brothers, father and mother – the mother was in the front passenger seat, and the two brothers were in the left and middle seats of the first row of back seats. Evidence was adduced at the trial from the plaintiff and his parents that the father was the driver and the plaintiff had been in the right rear seat next to his brothers.^[1] The brothers gave evidence of having been asleep at the time of the accident. Each had said that the father was driving when they were awake however there was evidence that the vehicle had stopped while they were asleep, which was when the insurer contended that a driver swap had occurred.

The insurer, joined as a defendant as required under the Motor Accident Insurance Act 1994 (Qld), denied that the father was the driver of the vehicle, pleaded that the plaintiff was the driver, and counter-claimed for damages for deceit.

The insurer relied in particular on evidence that matched the blood found on the airbag after the accident with the plaintiff’s DNA.

THE TRIAL

Evidence was adduced at the trial by Mr Hannan, the driver of the Nissan, who had not been able to see who was behind the wheel at the time of the collision. After the impact he was concerned about the risk of fire, and therefore got out of his car and carried his dog approximately 30 metres from the site. He then returned to the Toyota after an estimated timeframe of between 30 and 90 seconds from the time of the collision. Mr Hannan saw that there were two adults and three children in the vehicle, and he witnessed the father standing between the first and second row of the seats, trying to help one of the children. Mr Hannan then began assisting the father to remove the children through the rear sliding door.^[2]

One of the first police officers at the scene spoke to the father, with the aid of an interpreter, and the father identified himself as the driver of the Toyota.^[3]

By the time the principal investigating officer arrived, none of the family remained at the scene. The officer appeared not to have been informed of the account obtained by the first police officer. His inspection noted that there was bloodstaining on the driver’s airbag, the driver’s seatbelt was buckled, and the driver’s seat was reclined slightly. He was given to understand that the occupants of the Toyota had not been cooperative in identifying the driver.^[4]

Despite there being other bloodstaining elsewhere in the vehicle, only the bloodstaining on the airbag was tested, with blood samples from three locations taken using the same swab. The plaintiff and his father voluntarily supplied samples of their DNA and the test results established that the blood on the airbag came from the plaintiff.^[5]

The insurer’s case was that the bloodstains on the airbag were the result of direct contact with the plaintiff’s face, which was bleeding from injuries sustained in the collision.^[6] The insurer contended that in the immediate aftermath of the collision, the father had lowered the driver’s seat and pulled the plaintiff into the rear seat directly behind.^[7]

The plaintiff’s case was that his blood must have been transferred to the airbag by a third party.^[8]

Photographs taken at the scene showed the father with blood on his hands. A witness doctor who rendered assistance at the scene stated that the father did not have any injuries but had bloodstains on the palms of his hands. The plaintiff’s case was that the father had wiped the plaintiff’s blood from his own hands onto the deflated airbag while attempting to assist the mother, who was trapped in the front passenger seat.

Trial judge’s reasons

The trial judge rejected the evidence of the plaintiff and his mother, and found that the plaintiff was the driver.^[9] The counterclaim was upheld and the claim was dismissed.

The trial judge considered that there was no reason to conclude that the father could not have extricated himself from the driver’s seat and then moved the paralysed plaintiff into the backseat in the no more than 90 seconds prior to the arrival of Mr Hannan.^[10]

Though not included in either party’s case, the trial judge found that the plaintiff, as the driver, had not been wearing a seatbelt and that the seatbelt was buckled to disengage an alarm.^[11]

The plurality judgment in the High Court noted that the trial judge’s conclusion as to the identity of the driver was ‘based upon a line of inferential reasoning proceeding from other, circumstantial, evidence, particularly the forensic evidence’.^[12]

Expert evidence of Dr Robertson

The insurer had called an expert in forensic medicine and pathology, Dr Robertson, to give evidence on the likely means of transmission of the bloodstaining on the airbag. Dr Robertson considered that the staining was consistent with direct contact between the airbag and a person with heavily bleeding facial injuries, and not consistent with dripping or splatter.

Dr Robertson’s opinion was based on viewing photographs of the airbag taken by police. She could not exclude that the blood may have been deposited by means other than direct contact but that the absence of impressions of fingerprints or handprints made transfer by a third party less likely.

Dr Robertson had acknowledged that bloodstain pattern analysis was a ‘notoriously inexact science’ in ‘which there is considerable scope for subjective judgment and a “reasonably high error rate in any assessment”’.^[13]

At the time of forming her opinion, Dr Robertson was unaware that the bloodstaining on the left side of the airbag was predominantly on the windscreen side at the time the airbag was deployed. When this was drawn to her attention in cross-examination, she maintained that she had ‘not discounted that there could have been even quite small movement of the face following initial contact with the airbag’.^[14]

Dr Robertson had no experience in examining blood patterns on airbags and did not know how airbags were deployed. She acknowledged that blood on synthetic materials like this could spread before soaking into the final pattern. She still expected though that there would be some trace of the object transferring it and that the appearance in this case made it ‘extremely unlikely’ that it was transferred from a person’s hand.^[15]

The trial judge considered Dr Robertson’s evidence to be highly persuasive,^[16] and rejected the plaintiff’s hypothesis as to a secondary transfer.^[17]

Expert evidence of Dr Grigg

Not relevant to the trial judge’s finding that the driver was not wearing a seatbelt,^[18] the plaintiff had led evidence from forensic engineer Dr Grigg that was not challenged to this extent.

Dr Grigg’s evidence explained the operation of the airbag and the front seatbelts in the model of the Toyota Tarago involved: crash sensors caused the airbags to inflate in about 0.04 seconds, and deflation occurred about 0.2 seconds after impact. The same sensor system caused pre-tensioners on the seatbelts to be deployed, producing ‘a powerful force pulling the wearer back against the seat. This may be contrasted with conventional, inertia seatbelts that serve merely to prevent forward movement beyond a fixed point’.^[19]

As noted by the plurality judgment in the High Court:

‘The bloodstaining was predominantly on the windscreen side of the airbag (when inflated) on both the left and the right side. There was bloodstaining on the underside of the airbag beneath the lower plastic flap [positioned on the steering wheel boss]. There were no bloodstains on the central front portion of the airbag, which, when inflated, faced the driver.’^[20]

THE COURT OF APPEAL

The Queensland Court of Appeal concluded that but for the inference to be drawn from the DNA evidence, it was ‘much more likely’ that the plaintiff was not the driver of the Toyota and his father was.^[21]

The Court found that if the plaintiff, as the driver, was not wearing a seatbelt, there was no real prospect that the father would have attempted to remove him from the vehicle other than by taking him straight out through the driver’s door.^[22] Contrary to the trial judge’s finding, there was little support for an inference that the driver had not worn the seatbelt. It was likely that whoever the driver was, he was wearing the seatbelt.^[23]

The Court rejected the trial judge’s analysis as to the relative ease with which the father could have removed the plaintiff from the driver’s seat into the rear seat within the 90 seconds before Mr Hannan witnessed the plaintiff in the back seat.^[24]

However, McMurdo JA in the Court of Appeal (with whom Fraser and Philippides JJA agreed) agreed with the trial judge and found ‘the respondent’s argument about the significance of the DNA evidence as persuasive’.^[25]

His Honour went on to say:

‘This factually complex case was very closely balanced. 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.’^[26]

THE HIGH COURT

Given the role of the circumstantial evidence, and in particular that based upon the forensic evidence, the High Court found error with respect to the Court of Appeal’s approach.

The plurality said:

‘A court of appeal is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge’s findings unless they are “glaringly improbable” or “contrary to compelling inferences” is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, “in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge”. Here, the trial judge’s findings of primary fact were not disturbed. However, in material respects, the Court of Appeal found that the inferences that his Honour drew from those findings were wrong. ...

... Having rejected the essential planks of the trial judge’s reasoning, it was not to the point for the Court of Appeal to formulate the question as which of the two hypotheses the trial judge considered to be the more probable. Nor was it to the point to consider whether the trial judge had been unduly influenced by the DNA evidence. It was an error for the Court of Appeal to dismiss the appeals in this “very closely balanced” case on the footing that the trial judge’s decision was neither glaringly improbable nor contrary to compelling inferences. It was the duty of the Court of Appeal to decide for itself which of the two hypotheses was the more probable. ...

... McMurdo JA’s restraint in the face of the trial judge’s decision had the consequence that his Honour did not return to consider whether his tentative conclusion, contrary to the trial judge’s reasoning, that it was much more likely that the appellant was not the driver, was displaced by the DNA evidence. And his Honour’s agreement with the trial judge, that the DNA evidence was persuasive, was apt to overlook that the trial judge’s acceptance of Dr Robertson’s opinion was based upon the assumption that the appellant was unrestrained by the seatbelt at the time of the collision. Proceeding in this fashion was, in turn, to overlook the significance of Dr Grigg’s unchallenged evidence regarding the existence and operation of the seatbelt pre-tensioners and the rates of inflation and deflation of an airbag of the type found in the Toyota.’^[27]

The disposition on the reasons of the plurality

The plurality considered that, given the evidence of the plaintiff and his mother was not critical to the determination of what was a largely circumstantial case, it was not necessary to order a new trial. The High Court had the power by s37 of the Judiciary Act 1903 (Cth) to give such judgment as ought to have been given.

The plurality considered that the finding should be made that the father was the driver of the vehicle. The reasoning adopted was as follows:

• the observation by Mr Hannan as to the plaintiff being in the rear passenger seat within 90 seconds of the collision powerfully supported the conclusion that the plaintiff was not the driver;

• the likelihood that the driver was wearing a seatbelt made Dr Robertson’s opinion ‘distinctly less sustainable’, given the evidence of Dr Grigg;^[28]

• the prospect that there could be movement of the plaintiff’s face to account for bloodstaining on the windscreen side of the airbag and on part of the steering wheel boss not exposed when the airbag was inflated was not ‘readily reconciled’ with the plaintiff being held in place against the driver’s seat by the pre-tensioned seatbelt;^[29]

• it was highly improbable that in less than 90 seconds the father had pulled the paralysed plaintiff into the rear passenger seat;^[30] and

• it was likely that the blood on the father’s hands belonged to the plaintiff as one of the first witnesses on the scene after Mr Hannan saw bright red blood on the plaintiff’s face, and the father touching the plaintiff’s face in an apparent attempt to keep him conscious. The likelihood that the blood on the airbag came from direct contact with the plaintiff’s bleeding face could not be ‘accounted greater than the likelihood that it was transferred from the father’s hands’.^[31]

Given Mr Hannan’s evidence and the conclusion about the significant difficulty there would be in moving the plaintiff to the back seat in the available timeframe, it was ‘much more likely’ that the father was the driver – and this conclusion was neither weakened nor contradicted by the DNA evidence once Dr Grigg’s unchallenged evidence was taken into account.

Reasoning of Kiefel CJ

The reasoning of Kiefel CJ, which adopted the reasoning of the plurality, added certain observations, especially where her Honour said:

‘Each of the parties sought to prove the factual scenario for which they contended by expert evidence of different kinds, from which inferences could be drawn. When considering the Court of Appeal’s reasons, it is useful to bear in mind what fact a party has undertaken to prove, and to identify the evidence by which it seeks to prove it and the evidence by which the other party seeks to meet and deal with that case.’^[32]

In other words, her Honour approached the analysis bearing in mind the shifting evidential onus of proof during the case.

Her Honour noted that the analysis of the Court of Appeal demonstrated that the evidence had reached a point at which the Court would conclude that the plaintiff was not the driver unless there was evidence which prevented that preliminary conclusion, which the Court went on to identify as the ‘DNA evidence’.^[33]

It was erroneous however to evaluate the competing hypotheses raised by the DNA evidence ‘in isolation’ from the earlier tentative finding based on the other evidence.^[34] Further, the DNA evidence, for its acceptance against the plaintiff, was based upon an erroneous assumption as to the seatbelt not being worn.^[35] Once the trial judge’s error was corrected, Dr Grigg’s evidence was engaged and the DNA evidence was rendered ‘of little, if any, value’.^[36]

DISCUSSION

Aside from the High Court’s observations on the meaning of a ‘real review’^[37] by an intermediate appellate court when conducting a rehearing – statements of principle that are applicable in any appeal conducted by way of rehearing, regardless of subject matter – the case is an interesting exposition of the use of circumstantial evidence, either in the absence of, or supplementary to, direct eyewitness evidence in motor vehicle claims.

Many cases arise where there is a dispute as to the identity of the driver of the vehicle. Here there was direct eyewitness evidence as to the fact, but it was challenged by the defendant with circumstantial evidence. The plaintiff sought to meet that challenge with other circumstantial evidence.

Modern courts have long recognised that judges have limited capacity for determining whether a witness is telling the truth just by observing them in the witness box.

In Fox v Percy,^[38] Gleeson CJ, Gummow and Kirby JJ said of this recognition that both trial judges and appellate courts preferred instead to rely, where possible, upon ‘contemporary materials, objectively established facts and the apparent logic of events’.^[39] Circumstantial evidence then can be critical in supporting or refuting testimonial evidence.^[40]

Not all of the features relied upon by the parties in the trial remained relevant by the time of the judgment in the High Court, but the following are some of the pieces of circumstantial evidence relied upon by the parties in the courts below as relevant to the determination to be made by the High Court:

• that the plaintiff was unlicensed, was of age to have a learner’s permit, had not yet obtained his learner’s permit (although he had been undertaking practice online tests) and had never driven a motor vehicle;

• the existence of other bloodstains and possible bloodstains that had not been tested as part of the police forensic examination;

• the nature of the injuries suffered by each of the occupants of the vehicle, and especially the plaintiff, and the potential consistency or inconsistency of those injuries with the competing positions in the vehicle, including in the back seat where the seatbelt did not have pre-tensioner set up;

• the observations of the first few witnesses at the scene, discussed above in particular with respect to Mr Hannan and the doctor who attended soon thereafter;

• the evidence of the attending ambulance officers, including as to the potential role of emergency services in moving and adjusting seats and seatbelts;

• the fact that the DNA from a person’s hand may be overwhelmed by the DNA of another person’s blood, explaining the absence of DNA of the transferring person from the sample;

• the operation of airbags and seatbelt pre-tensioners;

• the materials that airbags are made of, that is, synthetic materials that do not so readily demonstrate the shape of a secondary transferring object as compared to a natural fibre; and

• the position of the bloodstaining on the airbag, including a consideration of that position at the time of inflation (and therefore in proximity to the face of the plaintiff, if the driver, and fixed position to the backrest of the driver’s seat by the pre-tensioner seatbelt).

As this evidence was adduced by the parties at the trial, the evidential burden continued to shift.

The significance of the observations of the trial judge about the demeanours of the plaintiff and his mother as witnesses were ultimately of no significance when there was such substantial evidence as to the truth of the contentions of the parties, consistent with the above observation from Fox v Percy.^[41]

Many features of that circumstantial evidence in contest had exhausted their use by the time the Court of Appeal made its findings, leaving a narrower and distinct but important cluster of evidence that, when brought to account with the uncontested findings made below, resulted in the Court finding in favour of the plaintiff.

With ever-advancing accident investigations, expertise, technology, and scientific advancement, the simplest of issues may have far more elaborate forensic exposition in trials and appeals.

In this case, DNA evidence was significant in that respect, as was the field of blood pattern analysis and a proper understanding of the technology in modern motor vehicles.

Other cases will come along where dash cameras, car computers, CCTV and satellite tracking systems – among other modern wonders – will stand to be analysed alongside mobile phone data in determining issues such as the subject issue, how accidents occurred, and who was at fault.

By and large the expert evidence in this case saw the experts avoid expressing their own conclusions on the ultimate issue and properly confining themselves to expressing opinions as to facts that were strictly within their expertise.^[42]

CONCLUSION

That this sort of litigation engages these issues makes it complex and expensive. On one hand, real potential for injustice can be avoided. On the other hand, the potential for injustice may be created because of technological or scientific advancements that, absent proper context, may be misunderstood; for example, the DNA evidence in this case. The challenges for litigants and their advisers in this environment are substantial.

Geoffrey Diehm QC commenced practice as a barrister at the bar in 1991 and took silk in 2008. He holds an LLB and LLM from the Queensland University of Technology. He practises in health law, insurance and personal injuries law, and public and administrative law. He appeared for the plaintiff at trial and in the appeals.

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^[1] The insurer tendered a statement of the father but he was not called to give oral evidence, a circumstance noted to not give rise to any adverse inference – see Kiefel CJ at [4] and the plurality at [48].

^[2] Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 (Lee HC), 137 [17].

^[3] Ibid, 138 [18].

^[4] Ibid, [19].

^[5] Ibid, 138–9 [20]–[21].

^[6] Ibid, 139 [22].

^[7] Ibid.

^[8] Ibid, [23].

^[9] [2017] Aus Torts Reports 82–328.

^[10] Lee HC, above note 2, 143 [39].

^[11] Ibid, [40].

^[12] Ibid, 148 [54].

^[13] Ibid, 142 [34].

^[14] Ibid, [35].

^[15] Ibid, [36].

^[16] Ibid, 143 [41].

^[17] Ibid.

^[18] See ibid.

^[19] Ibid, 141 [29]–[30].

^[20] Ibid, [32].

^[21] Lee v Lee & Ors (2018) 84 MVR 316 (Lee QCA), 143.

^[22] Lee HC, above note 2, 145 [45].

^[23] Ibid, [46].

^[24] Ibid, 144–5 [44].

^[25] Lee QCA, above note 21, 344 [151].

^[26] Ibid, [152].

^[27] Lee HC, above note 2, 148–9 [55]–[57].

^[28] Ibid, 150 [59].

^[29] Ibid, 151 [62].

^[30] Ibid, [63].

^[31] Ibid, 151–2 [64].

^[32] Ibid, 134–5 [3].

^[33] Ibid, 135 [6]–[7].

^[34] Ibid, 136 [9].

^[35] Ibid, [11].

^[36] Ibid, 137 [13].

^[37] Ibid, 148 [55].

^[38] Fox v Percy (2003) 214 CLR 118.

^[39] Ibid, 129 [31].

^[40] Ibid.

^[41] Above note 38.

^[42] With an exception concerning the evidence of one expert that was noted to have been based on matters outside of his expertise – see Lee QCA, above note 21, 328 [60].