Two step-brothers involved in crash claim neither was driving at time of accident

Date: Apr 18, 2019


Driver fatigue is one of the leading causes of car crashes in Australia, according to data from Budget Direct.

This cause was also at the centre of a motor vehicle accident case brought before the NSW Supreme Court of Appeal, where two step-brothers claimed the other was driving when their car crashed.

Background of the hearing

At around 10 a.m on September 6, 2012, the appellant and his step-brother (the respondent) were involved in a motor vehicle accident. The appellant was seriously injured while the respondent was only slightly hurt.

At the initial hearing, the court found that the driver had fallen asleep and the accident was therefore caused by his fatigue. Both men asserted that the other was the driver, but after deliberation, her Honour found that the appellant was the driver of the vehicle.

Grounds of appeal

In this appeal, the appellant claimed the primary judge failed to determine the correct driver of the vehicle and erred in reviewing all evidence. As such, the court of appeal’s predominant focus was on the nature of both parties’ injuries and whether they indicated that either man was wearing the front passenger seatbelt.

Were both seat belts worn?

In a joint report, crash investigation experts found that the front passenger seatbelt was worn by someone at the time of the accident, yet the driver’s was not. This evidence was accepted and not challenged during the appeal. Both experts revealed the seatbelt would have caused markings or bruising on the wearer’s chest.

The respondent’s injuries

In the short time after the motor vehicle accident, the respondent’s family, ambulance officers, nurse and a police officer observed bruising on the man’s body that could only have been caused by contact with a seatbelt.

The appellant’s injuries

As previously stated, the appellant sustained severe injuries as a result of the crash. An orthopaedic surgeon gave expert evidence concerning the appellant’s injuries. He claimed that the grazes, lacerations and abrasions on his body made it more likely that the man was unrestrained rather than restrained by a seatbelt.

After further deliberation, the court of appeal was not satisfied that the appellant had established any error on the primary judge’s decision, and therefore the appeal was dismissed.

Determining negligence in motor vehicle accidents isn’t always an easy feat, as the above case highlights. If you’re wondering whether you’re eligible for compensation over a similar claim, get in touch with the expert legal team at Gerard Malouf & Partners.

Call us now on 1800 004 878 to book a free appointment with one of my compensation experts, or email your enquiry.