In Lee v Lee & Ors, the plaintiff had suffered catastrophic injuries as a consequence of a motor vehicle accident on Stradbroke Island. The collision occurred due to negligence of the driver of the vehicle. The identity of the driver was in dispute. The plaintiff contended that the first defendant, his father, was driving at the time of the accident and that DNA evidence indicating the presence of the plaintiff’s blood on the deployed driver’s airbag could be explained by the first defendant, having removed other occupants (including the plaintiff) from the vehicle, then wiping his hands on the deployed airbag. The third defendant CTP insurer submitted that the preponderance of the evidence strongly supported the conclusion that the plaintiff was the driver of the car at the time of the accident and that the blood on the airbag was consistent with blood being deposited by direct contact with the source, as opposed to having been ‘spattered’, and that there were no swipe or wipe marks or other evidence of transfer from another source. Boddice J accepted that the blood found on the driver’s deployed airbag was the plaintiff’s blood and found that the driver of the vehicle was the plaintiff. His Honour declined to draw any Jones v Dunkel adverse inference from the failure of the plaintiff to call the first defendant in his case. His Honour found the third defendant was entitled to judgment in its favour on the plaintiff’s claim and on the third defendant’s counterclaim, based on deceit, for monies paid by it to the plaintiff and the second defendant, against the first defendant and the second defendant and the plaintiff. Hemmant’s List’s Richard Douglas QC and Brett Charrington appeared for the third defendant and Geoffrey Diehm QC appeared for the plaintiff. See the judgment here: http://archive.sclqld.org.au/qjudgment/2017/QSC17-042.pdf.
