How the Court Decided ‘Who was Driving?’ in a Disputed CTP Claim

Case Note – Lee v Lee & Ors [2017] QSC 42

In the case of Lee v Lee & Ors [2017] QSC 42, the Court had to resolve a factual dispute regarding who was driving the vehicle at the time a motor vehicle accident occurred. The plaintiff in the matter had suffered catastrophic spinal injuries in the accident, and alleged that the first defendant was driving, however the second defendant (the CTP Insurer) had filed a counterclaim alleging that the plaintiff was driving the vehicle. The Court looked to expert evidence to determine that the plaintiff was in fact driving the motor vehicle at the time of the accident and that the second defendant insurer was not liable to pay compensation.


In September 2013, a family who had emigrated from Taiwan enjoyed a morning at Brown Lake on Stradbroke Island. They decided to leave for Blue Lake around lunchtime in their Toyota Tarago. A collision occurred when their vehicle crossed wholly onto the wrong side of the road and met head-on with a Nissan Patrol coming around a blind corner. The family’s eldest son, Mason, suffered catastrophic spinal injuries causing paraplegia as a result of the collision.


Mason sought to recover damages in negligence for personal injury from RACQ Insurance as the compulsory third party insurer of the Tarago. Mason alleged that the collision was caused by the negligence of his father as driver of the Tarago.

RACQ Insurance argued that it was not liable to pay Mason damages on the basis that Mason’s father was not driving at the time of the collision; Mason was. RACQ alleged that in driving without a driver’s licence, 17-year-old Mason was wholly responsible for his injuries.

At issue was, who was the driver of the Tarago at the time of the collision?


Evidence provided at trial pointed to the inescapable conclusion that Mason was the driver of the Tarago at the time of the collision.

Notably, a DNA analysis of blood found on the deployed driver’s airbag of the Tarago revealed Mason’s DNA. That conclusion raised the question of how Mason’s blood came to be on the driver’s airbag. The most probable reason was that it was deposited by direct contact with Mason’s face, as a consequence of Mason being the driver of the Tarago at the time of the collision. Mason had sustained facial injuries which resulted in significant initial bleeding. There was no direct evidence to suggest it had been deposited there by another source. A source was said to have been the father wiping his hands onto the airbag after he had been in contact with Mason’s bleeding face. That inference was found to be highly improbable. Firstly, the father himself was bleeding from the hands. The wiping of blood onto the deployed airbag could not have occurred without the DNA of the father transferring onto the surface also. In addition, a specialist in forensic medicine and pathology noted that an absence of markings on the deployed airbag consistent with a transfer from another source suggested that the blood came from direct contact with the bleeding source.

It was also found that a consideration of the personal injuries sustained by Mason as a consequence of the collision support the conclusion that he was the driver. Medical professionals gave evidence that while Mason’s facial injuries and catastrophic spinal injury could have occurred if positioned in the rear seat, they were more consistent with contact at force with a deployed airbag. It was also observed that this would be particularly likely if the driver was not restrained by a seatbelt. Following the collision the driver’s seatbelt was found to be still latched in position. What follows is that the driver likely connected the seatbelt to disengage any warning signal and then drove without the benefit of it. Expert evidence was given to suggest that seatbelts are designed to withstand the forces of a collision, and therefore, that it is unlikely the seatbelt was locked into position.


The Supreme Court of Queensland was satisfied that Mason was the driver of the Tarago at the time of the collision in light of the evidence. Therefore, RACQ was not liable to pay Mason.

Lessons Learned

There are two important lessons that can be learned from this case:

  1. In certain circumstances, driving unlicensed can result in a compulsory third party insurer not being liable to pay any damages that might arise a result of a motor vehicle accident; and,
  2. It is important to be honest before a Court.

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