Lee v Lee; Hsu v RACQ Insurance Ltd; Lee v RACQ Insurance Ltd

• Jurisdiction: Australia Federal only
• Court: High Court (Australia)
• Judge: Kiefel CJ.,Bell,Gageler,Nettle,Edelman JJ
• Judgment Date: 04 September 2019
• Neutral Citation: [2019] HCA 28
• Docket Number: B61/2018, B62/2018 & B63/2018
• Date: 04 September 2019

[2019] HCA 28

HIGH COURT OF AUSTRALIA

Kiefel CJ, Bell, Gageler, Nettle and Edelman JJ

B61/2018, B62/2018 & B63/2018

Matter No B61/2018

Lien-Yang Lee

Appellant

and

Chin-Fu Lee & Ors

Respondents

Matter No B62/2018

Chao-Ling Hsu

Appellant

and

Racq Insurance Limited

Respondent

Matter No B63/2018

Chin-Fu Lee

Appellant

and

Racq Insurance Limited

Respondent

Representation

G W Diehm QC with M M Callaghan for the appellant in B61/2018 (instructed by Slater & Gordon Lawyers)

J M N Hewson for the first respondent in B61/2018 and the appellant in B63/2018 (instructed by VBR Lawyers)

M Grant-Taylor QC with J M N Hewson for the second respondent in B61/2018 and the appellant in B62/2018 (instructed by Littles Lawyers)

R J Douglas QC with B F Charrington for the third respondent in B61/2018 and the respondent in B62/2018 and B63/2018 (instructed by Gilchrist Connell Lawyers)

Insurance law — Motor vehicles — Personal injury — Where appellant injured in motor vehicle collision — Where appellant gave evidence father driving vehicle at time of collision — Where appellant alleged injuries caused by negligence of father — Where appellant's blood located on driver's airbag — Where expert evidence relating to possible source of blood — Where expert evidence relating to seatbelt and airbag design — Where trial judge concluded appellant driving vehicle — Where Court of Appeal dismissed appeal — Whether trial judge's findings glaringly improbable or contrary to compelling inferences.

Appeal — Rehearing — Where trial judge drew inferences and made findings of fact based on lay and expert evidence — Where Court of Appeal found inferences wrong in material respects — Whether Court of Appeal erred in failing to conclude trial judge misused advantage as trial judge — Whether Court of Appeal failed to conduct “real review” of evidence given and trial judge's reasons for judgment.

Words and phrases — “contrary to compelling inferences”, “glaringly improbable”, “real review”, “trial judge's advantage”.

ORDER

Matter No B61/2018

• 1. The appeal is allowed.

• 2. The third respondent is to pay the appellant's costs.

• 3. The order of the Court of Appeal of the Supreme Court of Queensland made on 1 June 2018 is set aside and in lieu thereof it is ordered:

  • (a) the appeal to the Court of Appeal is allowed and the orders of the trial judge made on 23 March 2017 are set aside;

  • (b) judgment for the appellant on his claim against the third respondent in the sum of $3,350,000.00 (clear of rehabilitation expenses by the third respondent pursuant to the Motor Accident Insurance Act 1994 (Qld)), with the date of judgment to take effect pursuant to r 660(3) of the Uniform Civil Procedure Rules 1999 (Qld) on 23 March 2017;

  • (c) the counterclaim of the third respondent against the appellant is dismissed;

  • (d) the third respondent pay the appellant's costs of and incidental to his claim on the indemnity basis; and

  • (e) the third respondent pay the appellant's costs of and incidental to the third respondent's counterclaim and of the appeal to the Court of Appeal on the standard basis.

Matter No B62/2018

• 1. The appeal is allowed with costs.

• 2. The order of the Court of Appeal of the Supreme Court of Queensland made on 1 June 2018 is set aside and in lieu thereof it is ordered:

  • (a) the appeal to the Court of Appeal is allowed;

  • (b) the orders of the trial judge dated 23 March 2017 are set aside and in lieu thereof judgment for the appellant on the respondent's counterclaim against the appellant;

  • (c) the respondent pay the appellant's costs of the counterclaim on the standard basis; and

  • (d) the respondent pay the appellant's costs of the appeal to the Court of Appeal on the standard basis.

Matter No B63/2018

• 1. The appeal is allowed with costs.

• 2. The order of the Court of Appeal of the Supreme Court of Queensland made on 1 June 2018 is set aside and in lieu thereof it is ordered:

  • (a) the appeal to the Court of Appeal is allowed;

  • (b) the orders of the trial judge dated 23 March 2017 are set aside and in lieu thereof judgment for the appellant on the respondent's counterclaim against the appellant;

  • (c) the respondent pay the appellant's costs of the counterclaim on the standard basis; and

  • (d) the respondent pay the appellant's costs of the appeal to the Court of Appeal on the standard basis.

1 Kiefel CJ. The evidence relevant to the issue raised by these appeals is detailed in the reasons of Bell, Gageler, Nettle and Edelman JJ. It will be necessary for me to refer only to critical aspects of it. I agree with the orders proposed by their Honours for the reasons given, and wish only to add the following regarding the Court of Appeal's analysis of the evidence.

2 The appellant in the first appeal was seriously injured as a result of a collision between the motor vehicle in which he was travelling and another motor vehicle. The driver of his vehicle was at fault. The appellant claimed that his father was the driver. RACQ Insurance Limited (“the RACQ”) defended the action on the basis that that claim was false and that the appellant himself had been the driver when the accident occurred.

3 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.

4 The reasons of the Court of Appeal commenced with a detailed review of the trial judge's findings. McMurdo JA was obliged to make a number of corrections to those findings. In relation to the trial judge's rejection of the evidence of the appellant and his mother, his Honour observed 1 that the statement that the appellant's evidence had been given through an interpreter was incorrect. His Honour did not consider that that error affected the trial judge's findings of credit, or the lack thereof. So much may be accepted. But the rejection of their evidence did not mean that the appellant was unable otherwise to prove his case or that the RACQ had succeeded in establishing that the appellant was the driver. Some of the other evidence, such as the medical evidence relating to the injuries suffered by the appellant, was neutral in the process of evaluation as was the fact that the father had not given evidence 2.

5 McMurdo JA made other, more important, corrections to the findings. One of these concerned the possibility, for which the RACQ had contended, that the appellant had been moved from the driver's seat to the passenger seat behind the driver's seat, where he was first observed by the driver of the other vehicle involved in the collision. That person arrived at the scene very shortly after the collision. McMurdo JA was strongly of the view that there would have been considerable practical difficulties for the father in relocating the appellant from the driver's seat within such a short period of time.

6 These factors were sufficiently compelling for his Honour to state that, on the basis of the evidence to this point, he would have held that the appellant was not the driver 3. His Honour may be understood to have meant that unless there was evidence which prevented that preliminary conclusion, the appellant's case was made out.

7 The evidence that his Honour went on to consider was the “DNA evidence”. This was evidence as to the presence of the appellant's blood on the driver's airbag which had been led by the RACQ through its medical witness, Dr Robertson. The evidence, McMurdo JA observed, had been most influential in the trial judge's reasoning 4.

8 In McMurdo JA's view two inferences were available from that evidence 5 and one was more probable than the other. It was quite probable that the blood came to be on the driver's airbag because the appellant had been in the driver's seat, due to contact between the appellant's bleeding facial and teeth injuries and the airbag. The alternative hypothesis, that the appellant's father had transferred blood from the appellant's injuries to the airbag via his hands, was less probable. His Honour concluded that the trial judge's preference for the first hypothesis could not be said to be wrong 6. The effect of its acceptance was to weaken the appellant's case 7.

9 Given the finding made by his Honour that it was improbable that the father could have moved the appellant from the driver's seat to the rear seat in the time available, it is not obvious that the DNA evidence compelled a conclusion that the appellant was present in the driver's seat. If the DNA evidence was the only other evidence to be taken into account, it was not a matter of choosing which of the two hypotheses it raised was the more probable in isolation from that earlier finding. Each hypothesis would have to be considered in light of the level of certainty which attended that finding.

10 There were other matters which it was necessary to consider but which were not taken into account. As the joint reasons explain, it is by this means that the Court of Appeal fell into error. These matters affected the weight which

could be given to the DNA evidence and effectively forestalled any consideration of the two hypotheses

11 In the first place, the DNA evidence was based upon an erroneous assumption. The evidence given by Dr Robertson about the presence of the appellant's blood on the driver's airbag and surrounds was based upon an assumption that the appellant was unrestrained by the driver's seatbelt at the time of the collision. In the second important correction to the trial judge's findings, but consistently with the cases of each of the parties, McMurdo...