Consistency consistency consistency. The following is a textbook example of how uniformity in a plaintiff’s account of an accident occurrence can trump a determined insurer attack on the claimant’s credibility.
Chris Spencer, a 45-yr-old trainee electrician and resident of Abercorn – pop. 15 – sustained severe injuries when he lost control of his Yamaha bike in an overtaking manoeuvre at Eidsvold in February 2013.
Spencer’s account was that he came up behind the slower moving Kenworth superdog tanker – on his morning commute southbound on the Burnett Hwy to his Mundubbera workplace – at 100 kph and after checking that it was safe to do so, began to overtake the multi-trailer rig on the right.
After starting the manoeuvre, the Kenworth T401 began a turn to the right towards a farm entry requiring immediate evasive action from the rider.
That ended with the Yamaha skidding off the road and Spencer landing in a drain in a condition that saw him airlifted to Bundaberg Hospital for – among other things – an emergency splenectomy.
Truck driver Noel Downie told police that he had checked in front and behind before starting his low speed turn into the Oppermann farm and that he had selected the right-hand indicators “on”, 500 m to the north of that point.
In the dispute that came before the Supreme Court in Rockhampton in March 2019, Downie postulated that the trailing motorcyclist had lost control of the bike before his rig had even begun to turn.
Although the farm entry was on a 500m “straight”, Downie claimed in one account, only to have seen the motorcycle only when it was beside his truck.
Justice Graeme Crow’s calculations put the motorcycle in Downie’s (rear) view for at least 13 seconds.
On that basis he concluded that had the truck driver checked his mirrors “he ought to have seen Mr Spencer’s motorcycle some considerable distance back and ought not to have commenced the right-hand turn”.
First points to the motorcycle rider – the court ruled Downie had failed to keep a proper lookout and had turned when it was unsafe to do so.
More difficult though to resolve, was whether the truckie had activated his right-hand turn indicators of the T401 rig at a sufficient distance prior to beginning the turn. This point was relevant to causation and contributory negligence.
“This turns entirely upon an assessment of the respective credit” of both road users, observed his honour before probing their respective various accounts of what had happened.
To shutdown this argument Suncorp contended – that because of his adverse taxation, traffic and police histories – Spencer should not be considered a witness of truth.
In answer to this challenge, Spencer candidly recounted from the witness box, his accountant’s advice that “if you don’t owe them any money the ATO doesn’t care if you put a return in or not”.
Accepting that proposition, the court ruled that a failure to lodge an income tax return that would only lead to a tax refund could not adversely affect a claimant’s credit.
Likewise the argument that two speeding offences and one low-level drink-driving offence after the accident meant Spencer could not be trusted to tell the truth.
Although Suncorp could prove only one drink-driving offence, Spencer readily conceded that he had two earlier offences in his youth. “As a young guy I was fairly reckless,” he said bluntly.
“Spencer’s traffic record does not cause me to doubt his evidence,” wrote Justice Crow in his 37 page judgement.
What though of two assault convictions which had even resulted in him being barred from working on some construction sites?
“Whilst the 2006 and 2011 convictions for assault do not reflect well,” reasoned the judge, “they do not cause me to doubt Mr Spencer’s honesty nor the reliability and providing evidence concerning the accident”.
The rider led evidence from his employer was that he was a “very conscientious” worker to whom the employer was providing assistance to help Spencer obtain his electrical trade qualifications.
All this added to Justice Crow’s impression that Spencer was a “friendly and enthusiastic witness who answered all questions in an open fashion”.
Spencer had provided a record of interview to police at Eidsvold Hospital – while under morphine and against vocal protestations from the nursing staff addressed to the interrogating officers – before the Bundaberg airlift.
In that statement he conceded he had left home 10 minutes late that morning, raising a suggestion that he may have been speeding on route to work.
Spencer had however been crystal clear on the critical issue: that when he began to overtake there weren’t any brake lights or traffic indicators signalling any intention to change direction.
The record of interview was a “powerful prior consistent statement recorded while Spencer was at the severe disadvantage of being injured and having been administered morphine and provided in a credible manner,” observed his honour.
On the other hand, the court had significant concerns with Downie’s evidence.
The truck driver had to be led, to get into evidence that he had applied the right-hand traffic indicators. Even then he only answered “you apply the right-hand indicators before you turn”.
Neither did he swear to his actual pre-accident speed. Rather his evidence was – as it was on several other important issues – he “would imagine” it was 70 kph.
This led the court to conclude that his version of events was a “reconstruction based on past common practice rather than factual evidence”.
There were also “startling” inconsistencies from the truck driver when he first saw the motorcyclist and the distance before the Oppermann farm gate that he had selected his right indicators “on”. On the stand, Downie reduced this distance form the 500m he had told police, to 200m.
In a further attempt to undermine the motorcyclist’s case, Suncorp called a local retired truck driver to the stand.
Douglas Leifels had also been heading south on the Burnett Highway when – he claimed – a motorcycle overtook him while “wheel-standing” on a corner of the highway.
His Honour thought Leifels’ evidence unreliable and could not reach any conclusion “as to the level of recklessness, if any, of the earlier manoeuvre”.
The insurer’s assertion that Downie must have activated the indicator in advance of the farm gate by force of “habit” and conformity with a “good and safe practice”, was also rejected as having no force at all.
In conclusion, Justice Crow reasoned “it is far more probable than not that Spencer is correct in his assertion that the right-hand indicator were not activated at all the time of the accident”.
Spencer thus defeated the insurer’s multi-pronged assault, largely as a result of his absolutely consistent accounts of what had occurred and his open and frank demeanour.
Of the multiple injuries sustained, it was the internal and abdominal injuries, the removal of his spleen, his left shoulder and right knee injuries which caused Spencer the most difficulty.
With seven pages of the judgement devoted to general damages, just $42.5k was awarded (ISV 24).
Of note though was that the court eschewed medical “experience” evidence of the period over which an asymptomatic condition would have become symptomatic regardless of an accident.
Orthopaedist Gregory Gillett swore “that it is not possible to hypothesise as to when, absent an accident, Spencer’s pre-existing [left shoulder] degeneration would have caused him to cease work”.
Gillett added when pressed, that “by his experience” had the accident not occurred, Spencer would have suffered significant symptoms within 2 to 3 years of the accident in any event.
Noted his honour: “Dr Gillett’s great experience is necessarily based on the treatment of symptomatic patients.
“It is difficult to accept and has not been explained how any expert can proffer a reliable opinion of about when an asymptomatic pre-existing condition would necessarily have become significant and to what extent symptomatic, in circumstances where the expert opinion based not on any science but upon experience (even great experience) of treating symptomatic patients.
“Such prognostication for asymptomatic patients is in the nature of a bare ipse dixit – which translates to ‘a bare assertion fallacy’ – and is therefore objectionable.
Judge Crow nevertheless discounted Spencer’s future economic loss calculation by a factor of one third to accommodate the pre-existing left shoulder arthritis.
Incapable of manual labour henceforth, Spencer’s past loss of income and loss of earning capacity in the future was allowed after discount, at $480k and the total award inclusive of past and future expenses was $639k.