Will a statement made by an injured plaintiff immediately after an accident be admissible or excluded as hearsay? – Brown v Holzberger & Anor [2017] QCA 295

Ashley Brown (the plaintiff) sustained serious injuries after his motorcycle collided with a Hyundai vehicle insured by AAI Limited (the second defendant) at the intersection of FE Walker St and Reddan St, Bundaberg. The collision occurred as the driver of the Hyundai (the first defendant) had almost completed a right hand turn onto Reddan St. The plaintiff alleged that the collision was caused by the first defendant turning right across his path, leaving the plaintiff with no opportunity to avoid the collision. The second defendant defended the claim on the basis that at the time the first defendant began to turn right, it was safe to do so as the plaintiff's motorcycle was concealed behind a 4WD approximately 50 metres down the road. The second defendant argued that that the collision was caused by a combination of the plaintiff's excessive speed and the plaintiff overtaking the 4WD just prior to the intersection, in breach of the road rules.

The driver of the 4WD came to the plaintiff's aid after the collision. This witness testified that the plaintiff's first words to her were, "I thought he'd stop". The second defendant objected to the admission of this statement into evidence as hearsay. The plaintiff argued that the statement should be admissible under the res gestae exception to hearsay (which applies to statements made spontaneously or as part of an act) as the statement was made immediately following the accident and could be accepted as spontaneous and truthful. The plaintiff also argued that the statement was relevant as it supported the plaintiff's contention that he had no real opportunity to avoid the first defendant's turning vehicle.

The trial judge[2] ruled against the admission of the statement on two grounds:

1. That the statement was of no assistance or relevance to liability as it was not tied to a particular point in time or decision of the plaintiff; and
   
   
2. That the statement did not fall within the exception as it was a bare assertion that could not be excluded as a concoction or distortion.

The trial judge noted the plaintiff had a poor traffic history and may have been motivated to shift blame for the collision to the first defendant.

The trial judge ultimately found that the collision was caused solely by the plaintiff's negligence. The plaintiff appealed the evidentiary ruling and the trial judge's liability decision.

The plaintiff's appeal was unanimously dismissed by the Queensland Court of Appeal (the Court). The Court affirmed the trial judge's ruling as to the exclusion of the statement made by the plaintiff after the accident, finding the statement was not relevant and inadmissible under the res gestae exception. The Court also held that there was no compelling basis to disturb the trial judge's decision as to liability.

This case underscores the significant barriers faced in the admission of hearsay statements, even if made contemporaneously to the incident which is the subject of the claim.