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Whether collision was caused by negligence of the first defendant

Where plaintiff was a passenger in a vehicle being driven by first defendant – where the first defendant collided with a dead cow in the middle of the roadway – where plaintiff alleges to have suffered injuries as a result of collision

Facts

On 1 May 2020 the plaintiff was a passenger in a vehicle being driven by the first defendant when it collided with a dead cow lying in the middle of Boonah Fassifern Road.

Moments before the collision, the plaintiff saw headlights of a vehicle travelling in the opposite direction swerve sideways onto the wrong side of the road. This other vehicle was driven by Ms Hayes who gave evidence that she collided with the dead cow. This caused her to fishtail and swerve into the wrong lane. She was aware of the first defendant’s vehicle coming towards her, so she steered her vehicle down an embankment.

The first defendant gave evidence that he only had seconds from seeing Ms Hayes swerve off the road to then seeing the cow on the road. He said that he had slowed down but did not have his lights on high beam. He claimed that, by the time he saw the dead cow he was unable to swerve around it or stop in time. The plaintiff claimed that the time between seeing Ms Hayes swerve off the road was about 20 seconds and, in that time, he said to the Defendant, ‘There is a cow’. The first defendant submitted that the time was much less, somewhere between five and 10 seconds.

A further driver, Mr Hunt, was driving on the same road after the incident. He gave evidence that he also did not see the cow and drove over the top of it.

The plaintiff submitted the first defendant caused the accident by failing to activate the high beam lights, travelling at excessive speed, and failing to sufficiently slow his vehicle when he perceived Ms Hayes’ vehicle to travel in an erratic manner.

Decision

The claim by the plaintiff dismissed. Sheridan DCJ decision delivered on 17 August 2023.

Ratio

In relation to not having the lights on high beam, Judge Sheridan held the first defendant should not have had his lights on high beam when Ms Hayes was travelling towards him as this would have created a dangerous situation. In relation to the question of whether the first defendant should have flicked his lights to high beam after Ms Hayes had swerved off the road, Her Honour concluded the incident involving Ms Hayes would have been very distracting and happened very quickly and there was little time for the first defendant to react let alone put his lights on high beam.

In relation to travelling at excessive speed and failing to slow the vehicle in time, Her Honour noted the evidence of Ms Hayes and Mr Hunt and that both drivers were unable to see the cow before hitting it.

Judge Sheridan held, ‘A driver is expected to act with reasonable care and skill. This requires the driver to give reasonable attention to all that is happening on and near the roadway that may present a source of danger. The mere fact of a collision is not of itself evidence of negligence. In my view there is no evidence that Mr Nam derogated from his duty. He acted as an ordinary, prudent person would in the situation that confronted him’.

This compensation law case note appears courtesy of Travis Schultz & Partners (TSP), where the author, Beth Rolton, is a Partner. 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 case notes is available at schultzlaw.com.au/case-summaries (registration required). The full version of the judgments can be found at austlii.edu.au.

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