Memory loss caused by head trauma can be a major impediment to a plaintiff reliably recounting the occurrence of an accident. Ultimately, it is for the court to determine whether the plaintiff’s recollection is correct or is a recent invention or reconstruction. We discuss Shepherd v Nominal Defendant [2020] QSC 209, a recent case which illustrates the factors a court might consider in arriving at a conclusion.
The case involved an injured motorcyclist who claimed that he suffered injuries as the result of a hit-and-run incident in 2012. The plaintiff’s injuries included significant cognitive impairment. Although Justice North was sympathetic towards the plaintiff’s injuries, he found the plaintiff to be an unreliable historian and took into account his history of impulsive decision-making in determining that the cause of the accident was in fact the plaintiff’s own reckless driving.
Take away points
- Variations in a witness’ demeanour when providing evidence can indicate that they are not providing a reliable account based on memory.
- Where a witness has a propensity to accept false or inaccurate propositions, this indicates that the individual may be susceptible to suggestion and prone to reconstructing evidence.
- A court may have regard to a plaintiff’s history of impulsive decision making in determining the cause of a motor vehicle accident.
Plaintiff’s case
The plaintiff was at a friend’s house prior to the incident. On his own evidence, he had drunk approximately six cans of XXXX Gold over a period of four hours. He made an impromptu decision to visit his ex sister in law in Cairns, a four-and-a-half-hour journey. He left his friend’s house at 2.00am on his motorcycle, wearing thongs.
The plaintiff alleged that as he was riding, he saw a car approaching from behind. The car came as close as about two and a half to three metres behind him. As he approached a “dog leg right” turn in the road, he was forced into the left lane to avoid the vehicle, causing him to lose control of the motorcycle and collide with a gutter.
The plaintiff suffered injuries as a result of the incident, including significant cognitive impairment and injuries to the left arm and shoulder. He claimed damages for these injuries against the Nominal Defendant in place of the unidentified driver.
Evidence
The plaintiff gave evidence at the trial consistent with the version of events outlined above. In direct examination, the plaintiff provided evidence that he had reported the presence of the other vehicle to the police during a post incident interview. However, during cross examination he recanted from that recollection when he agreed with the statement “The police officer asked if you had a recollection about the accident and you told him that you did not”.
The plaintiff gave evidence that his recollection of events had improved over time such that although he could not recall the occurrence of the accident during his hospitalisation, he had more recently even been able to recall that the unidentified vehicle was a red sedan, there was more than one person in the vehicle and there was yelling coming from the vehicle. He said his recollection of events improved even after he completed the claim form more than a year after the accident.
Senior Constable Angelo Busetti was called for the defendant. He provided evidence in relation to his attendance at the scene post incident and his observation that there was “no sign suggestive of the involvement of another vehicle in the accident”. He also provided his recollection of interviewing the plaintiff at Townsville Hospital, at which time the plaintiff stated that he had no memory of the accident.
Otherwise, there were no direct witnesses to the incident, no CCTV footage of the accident and no photographs of the accident scene taken by the police.
The plaintiff was also cross examined extensively regarding incidents in his life prior to the motor vehicle accident. These included being expelled from school for fighting, numerous traffic infringements and treatment in hospital for a previous motorcycle accident, an incident where he was knocked unconscious, an injury to his right hand from punching a fridge, a jaw injury following an altercation with night club security staff and an incident where he was head butted.
Outcome
As a starting point, His Honour preferred the evidence of Senior Constable Busetti that the plaintiff had reported post incident that he had no recollection of the accident. It was noted that the plaintiff contradicted himself in evidence.
His Honour then outlined the reasons why he could not accept the plaintiff’s evidence relating to the events and circumstances of the journey:
- Disturbing variation in demeanour: His Honour identified that at times in his evidence, the plaintiff was very slow and deliberate, even hesitant, when answering. In contrast, when asked about the events in question, his evidence flowed more deliberately and easily, as if it had been rehearsed. His Honour expressed deep concern that the plaintiff’s evidence was not a reliable account based on memory.
- Inconsistent version of events: His Honour identified that the plaintiff had provided various accounts over the years concerning his recollection of events and there were a number of inconsistencies between these accounts.
- Propensity to accept false propositions: The plaintiff had a propensity to accept propositions from others during the examination that were false or inaccurate. His Honour formed the impression that the plaintiff was susceptible to suggestion and prone to reconstructing his evidence.
In conclusion, His Honour stated that with the plaintiff’s account of the incident discredited, “one is left with the circumstances of a damaged motor cycle, an injured plaintiff, some marks on a gutter or curb some distance away, a crude sketch plan, no eye witnesses and an empty intersection. To infer the involvement of an unidentified motor vehicle as part of the causation of the accident and the plaintiff’s injuries involves an impermissible degree of speculation”.
The Court had regard to the plaintiff’s history of impulsive decision making in considering an alternative cause of the incident. Speeding and/or momentary inattention were suggested. In the words of Justice North, “To embark upon a four and a half-hour journey to Cairns at 2.00 am on a motorcycle wearing thongs suggests an impulsive decision. The plaintiff’s history of sustaining injuries in fights and by other means suggests that he was prone to impulsive decision making”. His Honour concluded the possibility that the plaintiff was speeding could not be dismissed.
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