High Court case on identity - who is at fault?


Before the High Court of Australia was a Plaintiff who was involved in a head on motor vehicle collision that rendered him partially tetraplegic. At the time of the collision, there were five people in the car, being the plaintiff, his parents and two brothers. 

There was no dispute that the driver of the plaintiff’s vehicle was at fault for the collision.

The sole issue at the initial trial in the Supreme Court of Queensland was to determine who was driving the plaintiff’s vehicle at the time of the collision. 

The driver of the oncoming vehicle gave evidence that when he approached the plaintiff’s vehicle after the collision there was no one in the driver’s seat and he saw three younger males in the rear seats of the vehicle.  He also stated that he saw a person who he believed to be the father assisting the sons in the rear of the vehicle.

When police attended the collision, the father identified himself as the driver. 

A volunteer fireman who attended the collision informed the investigating police officer that the family had not been cooperative as to identifying the driver of the plaintiff’s vehicle.  Police investigations revealed that the plaintiff's blood was on the driver's steering wheel and airbag.

The insurer for the appellant’s vehicle, RACQ Insurance Limited (RACQ), contended that the plaintiff was the driver based on the DNA evidence.  The family maintained that the father was the driver.

Initial trial

The plaintiff and mother gave evidence at the initial trial, but the father did not.

The trial judge rejected the evidence of the mother and plaintiff after forming an adverse impression of their credibility.

The trial judge found that the plaintiff was the driver at the time of the collision and dismissed the plaintiff’s claim with judgment in favour of RACQ on its counterclaim.

Court of Appeal

The plaintiff, the mother and the father appealed to the Court of Appeal of the Supreme Court of Queensland (Fraser, Philippides and McMurdo JJA).  The leading judgment was given by McMurdo JA.

McMurdo JA stated that the Court of Appeal’s task was to re-hear the case “but not without regard to the decision of the trial judge” concluding that it had not been shown that the trial judge had misused his advantage of seeing and hearing the evidence in person, nor was it “glaringly improbably” or “contrary to compelling inferences”. 

The appeals were dismissed with costs.

Special leave to appeal to the High Court of Australia was granted on two grounds:

  1. the Court of Appeal’s failure to engage with a critical argument based on unchallenged expert evidence as to the blood evidence; and
  2. the Court of Appeal’s restraint in the face of the trial judge’s “advantage” in circumstances in which it is argued that the finding that the appellant was the driver of the vehicle was contrary to the compelling inferences from uncontroverted evidence.


Bell, Gageler, Nettle and Edelman JJ held that the Court of Appeal was 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 had erred in fact or law. 

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 that are undisputed or which have been established by the findings of the trial judge.

The High Court’s judgment stated that McMurdo JA’s approach towards the decision of the trial judge had the consequence that his Honour did not consider whether his tentative conclusion, that the plaintiff was not the driver, was displaced by the DNA evidence.  In his reasoning, however, McMurdo JA overlooked the assumption on which the expert evidence was based.

The plaintiff’s appeal was allowed.

While this case was determined on the facts, the judgment highlighted the position that an appellant Court must persist with the task of “weighing [the] conflicting evidence and drawing its own inferences and conclusions”.