Every so often, our Queensland CTP lawyers come across a situation where the drivers of both vehicles involved in an accident are injured, and each is alleging that the other party was at fault. This can cause complications for both parties’ claims.

This issue was considered by the Brisbane Supreme Court in Harris v Manton & Anor [2020] QSC 101. Both claimants alleged that the other was 100% at fault and QBE Insurance (Australia) Limited was the CTP insurer for both vehicles. In the circumstances, it was impossible to consider issues of quantum without first determining who was at fault. Due to the parties’ respective positions on liability, the claims were heard in a joint liability only trial.

Background

On 2 July 2015, a head on collision occurred between a Mazda utility and a Mitsubishi Pajero The vehicles were travelling on Bribie Island Road, which is a single lane carriageway with one lane in each direction. The Mazda was travelling westbound and was being driven by Mr Harris. The Pajero was travelling eastbound and was being driven by Mr Manton. The collision occurred in a section of the road which had no centre dividing line.

The road was quite busy at the time, with multiple vehicles travelling in each direction. As the two vehicles approached each other, the westbound vehicles were Mr Manton’s Pajero, followed by witnesses Kylie McGinn, Wendy Spicer, and Katrina Hardy. The first of the eastbound vehicles was driven by witness Lynette Walsh, followed by Mr Harris and then Graeme Creighton. The various witnesses provided evidence at trial on what they saw.

Decision

The matter was heard before the Honourable Justice Thomas Bradley on 5 May 2020. At the start of the trial, Justice Bradley ordered by consent that the evidence given in each proceeding would stand as evidence in the other proceeding. Evidence was given by the forensic investigator from Queensland Police Service, as well as by the eyewitnesses. There was no expert evidence given.

The critical issue was where the collision occurred, as both parties alleged that the other crossed into their lane. Based on the photographic evidence, Justice Bradley found that it was more likely that the collision occurred at the point where gouge marks had been made on the road. This was located entirely within the eastbound lane, in which Mr Manton was travelling – meaning Mr Harris had crossed into this lane.

His Honour also found that the witnesses called on behalf of Mr Harris were less satisfactory in their evidence than those called on behalf of Mr Manton.

As a result, His Honour found that Mr Harris had breached the duty of care he owed to Mr Manton and was 100% liable for the accident. Mr Manton had not caused or contributed to the collision in any way.

Implications

The implications of the decision were obviously profound for Mr Harris and Mr Manton – with Mr Manton being entitled to recover 100% of any damages agreed to or awarded, and with Mr Harris unable to recover any damages.

For practitioners in this area, the decision is a useful guide to the importance of obtaining early witness evidence in collisions where there are conflicting versions from the involved parties and liability may be in dispute. Without the witness evidence in this case, the result may have been very different.

In addition, the decision demonstrates the importance of obtaining copies of any forensic crash investigations undertaken by police, including photographs and statements, as this often contains vital information about the positioning of the vehicles at the time of the collision. In some circumstances, it can also be helpful to obtain independent forensic engineering evidence to further build on the investigations undertaken by police, and assist your client in establishing liability against the other party.