Insurance – driver avoids stationary traffic on highway…

…whether original collision caused ‘dangerous situation’ – whether stationary traffic a ‘situation’ – contributory negligence

Between about 1pm and 1.30pm on 17 August 2014, the driver of a motor vehicle crossed onto the wrong side of the road on the Kings Highway, south-east of Canberra, and collided with another vehicle. 

At about 2pm, Ms Collins was driving west on the Kings Highway, approximately 1-2 kilometres from the site of the original accident. After a long blind bend in the road, she was confronted with a line of stationary vehicles that extended from the original accident.

To avoid a collision with the rear-most vehicle, Ms Collins steered her vehicle up the embankment on the left side of the road, causing it to overturn, and her to suffer injuries.

By the time Ms Collins commenced proceedings in the District Court, the driver who caused the original accident had died. Her claim was brought against the driver’s compulsory third-party insurer, Insurance Australia Ltd.

At trial, the primary judge held that the insurer was not liable for Ms Collins’ injuries. The judge found that the insurance policy did not cover the claim because Ms Collins’ injuries were not the result of a “dangerous situation caused by the driving of the vehicle”, under s3A(1)(d) of the Motor Accidents Compensation Act 1999 (NSW) (the MACA).

Ms Collins appealed.

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On appeal, the issues were whether:

1. the primary judge erred in finding that Ms Collins was 50-65 metres away from the rear-most vehicle when she first saw the queue of stationary vehicles
2. Ms Collins’ injuries resulted from a ‘dangerous situation’ caused by the insured driver’s driving of his vehicle
3. the insured driver owed Ms Collins a duty of care
4. the insured driver breached a duty owed to Ms Collins
5. Ms Collins was contributorily negligent.

Decision

1. The orders of the District Court were set aside. Judgment for the plaintiff in an amount of $200,000 and for it to take effect on 2 August 2021. 
2. Order that the defendant pay the plaintiff’s costs of the trial and that the respondent pay the appellant’s costs.  

Ratio

Distance of vehicle

Basten AJA held (Meagher and Kirk JJA agreed) that the primary judge did not err in finding that Ms Collins was 50-65 metres away from the rear-most vehicle when she first saw the queue of stationary vehicles.

Dangerous situation

Basten AJA held (Meagher and Kirk JJA agreed) that the heavy traffic as a result of the original accident, caused by the insured driver, was a ‘situation’ within s3A(1)(d) of the MACA.

Whether a situation is ‘dangerous’ is dependent upon the state of affairs immediately prior to the injury. It was found that…

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• the queue of stationary vehicles was not visible until within 50-65 metres
• the existence of the queue could not have been anticipated
• it was not necessary for a driver to drive less than 60km/hr where the speed limit was 90km/hr
• there was no sign advising a lower speed limit and a car driving at 60km/hr could not stop in time without difficulty

…which consequently constituted a ‘dangerous situation’.

Duty of care

Basten AJA held (Meagher agreed) that a negligent driver who causes a collision on a regional highway creates a risk of injury to others who were not involved in the original collision.

Kirk JA held that the insured driver created a dangerous situation by putting an obstacle in the path of subsequent vehicles. The insured driver owed a duty of care to other road users, such as the appellant, despite the distance in time and space between the original collision and the appellant’s accident.  

Breach of duty

Kirk JA held that the trial judge focused on the precise mechanism by which harm occurred, but whether there was a geographic connection between two accidents was irrelevant to the likelihood of the foreseeable risk of harm eventuating.  

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Basten AJA held (Meagher agreed) that the consequential risks from a collision on a two-lane highway were foreseeable and not insignificant, and a reasonable person in the insurer driver’s position would have taken precautions.

Contributory negligence

Basten AJA held (Meagher and Kirk JJA agreed) that the driver of the rear-most vehicle in the queue, and the vehicle behind Ms Collins, were able to avoid a collision and injury, therefore Ms Collins was 20% contributorily negligent.

This compensation law casenote appears courtesy of Travis Schultz & Partners (TSP), where the author, Libby Thomas, is a lawyer. As part of the firm’s commitment to providing ongoing legal education, TSP practitioners review relevant judgments and prepare case summaries for the legal profession. A free searchable catalogue of compensation law casenotes is available at schultzlaw.com.au/case-summaries (registration required). The full version of the judgments can be found at austlii.edu.au.