September 2020


High Court rules on driver’s identity

by Resolve editor Kate Tilley

It seems a simple enough question – who was driving a vehicle when it was involved in a serious collision?

But the case had to go all the way to the High Court to get a definitive answer.

The head-on crash occurred on Stradbroke Island on 25 September 2013 when the Lee family’s Toyota Tarago collided with a Nissan Patrol, driven by David Hannan. Inside the Lees’ car were parents, Chin-Fu Lee and Chao-Ling Hsu, their son Lien-Yang Lee (known as Mason), who sustained catastrophic spinal injuries, and his two younger brothers.

The argument was whether the father Chin-Fu, an experienced driver, or Mason, then 17 years old, who did not hold a learner’s permit, was driving the Tarago.

CTP insurer RACQ argued Mason was driving and that the family had committed fraud by claiming the father was driving.

After hearing considerable evidence from witnesses, investigators, engineers and medical personnel, Queensland Supreme Court trial judge Justice Boddice said: “A consideration of the evidence as a whole satisfies me, on the balance of probabilities, that the driver of the Tarago was [Mason].”

In the Qld Appeal Court, Justice McMurdo, with whom Justices Fraser and Philippides agreed, said: “The case was and is finely balanced and requires an assessment of the probabilities of competing hypotheses where many things are unknown. The question is whether the decision of the trial judge was erroneous, having regard to the advantages of a trial judge in deciding factual questions where the credibility of witnesses was critical to the outcome ... I am not persuaded the decision was erroneous and I dismiss the appeals.”

During his judgement, Justice McMurdo initially said the evidence suggested it was more likely Mason was not the driver, mainly because of the difficulties in relocating him from the driver’s seat to the rear seat in the short time before Mr Hannan, who first took his dog to the side of the road because he feared the vehicles could catch fire, arrived at the Tarago.

But DNA evidence, which was “particularly influential” in the trial judge’s reasoning, was a factor that changed Justice McMurdo’s view.

Mason Lee’s blood was found on the driver’s airbag and he had facial injuries and injuries to his teeth “which were likely sources of blood on an airbag, had he been the driver”.

Justice McMurdo said the fact no blood appeared on the section of the airbag which would have been immediately in front of the driver as it inflated, did not prove the blood had not come from the driver.

Forensic and general pathology specialist Dr Robertson had rejected a hypothesis the blood was transferred to the airbag from the father’s hands after cradling his injured son. “She did so because of the absence of any sign of swipe or wipe patterns in the blood on the airbag. But Dr Robertson disavowed experience as an analyst of blood spatter patterns. And she agreed the science of blood stain pattern analysis was ‘notoriously’ inexact.”

Justice McMurdo said: “The task of this court is to rehear the case, but not without regard to the decision of the trial judge. Although there were limitations on the use the judge could make of the way in which [Mason] and his mother gave their evidence, it is not demonstrated that the trial judge misused the advantage he had from hearing and seeing this evidence as it was being given. The decision of the trial judge was neither ‘glaringly improbable’ nor ‘contrary to compelling inferences’.”

The High Court’s 4 September 2019 decision was explored in an AILA Qld webinar in July by Geoffrey Diehm QC, Michael Grant-Taylor QC and barrister Jennifer Hewson. All three had represented the Lee family.

The High Court ruled that the father was the driver, overturning both the 2017 trial decision and the 2018 Qld Appeal Court decision.

It ordered RACQ Insurance to pay the Lee family’s costs and $3.35 million in damages. 

During the webinar, Mr Diehm said the insurer’s interest was piqued by the bloodstained airbag, the driver’s seat being tilted backwards towards the rear compartment, where Mr Hannan had observed Chin-Fu and Mason when he arrived at the Tarago just after the crash, and the driver’s seatbelt being buckled up.

Mr Diehm said Mr Hannan could not say who was driving as no one was in the driver’s seat by the time he returned to the vehicles, within 30-90 seconds.

By then, Chin-Fu was attending to Mason and Mr Hannan helped remove the other two boys through the sliding door to the rear compartment. Mason’s mother could not be moved because of her severe injuries.

Mr Diehm said the insurer’s witness, Dr Robertson, had indicated the blood was likely from the driver, but “she hadn’t noticed it was on the part of the bag facing the windscreen”.

He pointed out the blood was in two distinct positions, the top right and bottom left corners of the deflated bag. The Lees’ expert witness, engineer Dr Frank Grigg, said the bad deflated within 0.5 of a second after impact, and it was more likely the blood stain happened after deflation, not before.

Mr Grant-Taylor said he had “no doubt all three [Lee family members] were looking at jail time if they had been convicted” of insurance fraud.

When the Appeal Court judgement was delivered “the Lee family’s despair was almost palpable”. Mr Grant-Taylor said he took 72 hours to let his “anger and disappointment dissipate” before he read the judgement.

When he saw that Justice McMurdo had initially said it was most likely Mason was not the driver, but reached the opposite conclusion because of the DNA evidence, he considered Justice McMurdo had been “blinded by science”.

Mr Grant-Taylor said a suggestion by RACQ, which was later abandoned, that the driver was not wearing a seatbelt at the time of the crash, was “critical to the whole sorry saga”.

Ms Hewson said the High Court decision “turned on unique facts” but showed it was important to “look at the totality of the evidence” when deciding grounds for appeal. It was “important to carefully analyse the facts and underlying assumptions with expert evidence”.

The High Court – Chief Justice Kiefel, with Justices Bell, Gageler, Nettle and Edelman – found the trial judge’s conclusion Mason was driving “was based on a line of inferential reasoning proceeding from other, circumstantial, evidence, particularly the forensic evidence”.

They said a court of appeal was “bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgement to determine whether the trial judge has erred in fact or law”.

The trial judge’s findings of primary fact were not disturbed, but the Court of Appeal found inferences he drew from those findings were wrong.

“Notably, the trial judge’s finding the driver was not wearing the seatbelt not only was contrary to each party’s case but, if correct, on the Court of Appeal’s analysis, would lead to the conclusion there was no real prospect [Mason] was the driver,” the High Court judgement said.

“And the trial judge’s acceptance of the RACQ’s case, that [Mason] had been pulled from the driver’s seat to the passenger seat immediately behind in something less than 90 seconds, was, in the Court of Appeal’s analysis, unlikely.”

The High Court judges said the Court of Appeal’s duty was to decide for itself which of the two hypotheses was the more probable, but it did not.

Justice McMurdo’s “tentative conclusion” it was much more likely the father was the driver was correct. “It is not a conclusion that is weakened, much less contradicted, by the presence of [Mason’s] blood on the airbag given Dr Grigg’s unchallenged evidence of the operation of the seatbelt and the airbag”.

CJ Kiefel, in a separate, additional judgement about the Appeal Court’s analysis of the evidence, said the finding about use of the seatbelt and Dr Grigg’s evidence “rendered the DNA evidence of little, if any, value”.

She said the DNA evidence was based on an erroneous assumption. Dr Robertson’s evidence assumed the driver was unrestrained by a seatbelt at the time of the collision. But Justice McMurdo had found it was “more probable than not that the driver was wearing the seatbelt provided”.

CJ Kiefel said Dr Grigg’s unchallenged evidence was that a driver restrained by the seatbelt would have been immediately pulled back into the driver’s seat on impact because of the operation of the seatbelt pre-tensioners.

“So, had [Mason] been the driver, the blood on the airbag could not be accounted for by direct contact between [his] face and the airbag. It must have come there by other means,” she said.   

Lee v Lee; Hsu v RACQ Insurance Ltd; Lee v RACQ Insurance Ltd [2019] HCA 28 (4 September 2019)

Lee v Lee; Hsu v RACQ Insurance Ltd; Lee v RACQ Insurance Ltd [2018] QCA 104 (1 June 2018)

Lee v Lee & Ors [2017] QSC 42 (23 March 2017)

Law firms’ case notes:
McCabe Curwood commentary

Hemmants List  commentary

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