Collins v Insurance Australia Ltd

Solicitors: Stacks Law Firm for the plaintiff McCabe Curwood for the defendant File Number(s): 2017/200886 Publication restriction: Nil

INTRODUCTION

1. Between 1:00pm and 1:30pm on Sunday 17 August 2014, Mr Brendan Falconer was driving his Holden Commodore Sedan in an easterly direction along the Kings Highway in Monga when he lost control of his vehicle on a bend; causing him to cross onto the wrong side of the road and collide with another vehicle. There is no question that he was at fault. The collision caused the road to be closed and traffic became banked-up. During the afternoon it was raining and the road was wet.
2. At about 2:00pm on the same day, the plaintiff was driving her Holden Astra motor vehicle in a westerly direction along the Kings Highway, Monga, and after rounding a bend, she observed that traffic was unexpectedly banked-up. In order to avoid a collision with the rear-end of the last of the stationary cars in her vicinity, she swerved her vehicle; causing it to leave the shoulder of the road and hit an embankment. This, she said, caused her motor vehicle to flip several times, before it ended up on its wheels. She sustained neck and lower back injuries as a result of that incident.
3. At the point where the plaintiff veered off the road, she was between one or two kilometres from the point where Mr Falconer had his collision along the same roadway.
4. At the time of the accident, Mr Falconer was insured with the defendant. I will henceforth refer to him as 'the insured'. Mr Falconer subsequently died, but the Court was informed that his death was not in connection with his motor vehicle collision on 17 August 2014. By her proceeding commenced on 3 July 2017, the plaintiff sues his insurer the defendant for damages for her personal injuries; relying upon s 113 of the Motor Accidents Compensation Act 1999 (NSW) (the 'MAC Act'). She asserts that the insured's negligence caused her personal injuries.
5. The parties are at issue as to the following: 1. Whether the insured's negligent driving caused a 'dangerous situation' within the meaning of s 3A(1) of the MAC Act (the 'MAC Act issue'); 2. The scope of any duty of care owed by the insured to the plaintiff (the 'Duty issue'); 3. Whether the insured failed to take the reasonable precautions that a driver in his position would have taken in response to the risk of harm, in accordance with ss 5B and 5C of the Civil Liability Act 2002 (NSW) ('CL Act') (the 'Breach issue'); 4. Whether any negligence by the insured caused the personal injuries to the plaintiff, in accordance with s 5D of the CL Act (the 'Causation issue'); and 5. Whether there should be a reduction in any damages because of contributory negligence by the plaintiff (the 'Contributory negligence issue').
6. The parties agree on the quantum of damages, on the premise that liability is established. Subject to any deduction for contributory negligence, quantum is agreed in the sum of $250,000.

The plaintiff

1. The plaintiff gave evidence that she was returning to her residence in Crookwell from Batemans Bay. She had ascended Clyde Mountain and was driving westward on what she later accepted was (generally) the plateau stretch of the highway towards Canberra. She said that the weather was poor: there had been heavy rain, it was dark and there was much water on the road. She said that the bend that she went around was at a slightly lower stretch, but not too steep. She recalled driving at between 50 - 65km/h along the mountain, but that she had slowed right down. She described driving around the bend which, because of the embankment on her left, obscured her sight of what was around the bend. It was not until she got around the bend that she saw stationary cars. She said that she straightened up, braked, then swung her car to the left before it hit the embankment. She said that she decided against steering to the right side of the road because she feared rolling into trees. She estimated that the car in front of her, which was a utility vehicle ('utility'), was 20m in front of her, or two or three car lengths.
2. In the course of her cross-examination, the plaintiff:

• accepted that she was familiar with the stretch of road and was aware that it was a primary route for motorists travelling from Batemans Bay to Canberra;
• accepted that, on Sunday afternoons, she expected that there could be significant traffic along the stretch;
• accepted that there was a variety of hazards she might confront which would require her to adjust her speed so as to prevent her from losing control: slow-moving vehicles in front; wildlife; the wet condition of the road; and roadworks. This was particularly so when driving around a bend;
• accepted that in wet weather, it would take longer for her vehicle to stop than in dry conditions. She was familiar with the phenomenon (if not the expression) of 'aquaplaning' in which car tyres might skate over a wet part of the road without actually gripping the road, resulting in a loss of control;
• said she thought that she had braked before steering her vehicle to the left of the utility in front of her;
• was challenged about the inconsistency between her evidence in chief, when she estimated being only 20m behind the stationary utility, and what she had told the police (recorded in Exhibit G) about it being 50m in front of her. It was suggested, but denied by her, that the inconsistency was explicable by her desire to deliberately understate the distance so as to minimize her own fault. She accepted, however, that even in wet weather, had she driven her car at 60 km/h around the bend she should have been able to stop behind a stationary car that was 50m ahead (T59.25); and
• appeared to be equivocal as to whether or not she was driving too fast in the circumstances (T64.11, 69.49 - 70.1).

1. I consider that the plaintiff was a generally credible witness who did her best to tell the truth. There was, for example, no hint of embarrassment when she was asked about an earlier motor vehicle accident in which she had driven off the road. But there were instances where the reliability of her testimony was questionable. This included when she gave inconsistent evidence about the distance that the utility was in front of her vehicle and an improbable account of her car turning 360 degrees prior to becoming stationary. In fairness to her, she was giving testimony about events occurring nearly seven years before but she improbably considered that her recollections of what occurred were just as good now as when she had given an account to the police at the time of the collision. I approach her evidence with caution.

The COPS entry in Police records

1. A contemporaneous account of the plaintiff's position (Exhibit G) was given to Senior Constable Mortimer, the police officer who arrived on the scene of the site of the subject accident. [1] SC Mortimer recorded the plaintiff reporting to him that she had been driving for about half an hour and driving slowly, due to the wet weather and had made it up Clyde Mountain, driving at 60km/h in an 80 km/h zone. The plaintiff informed SC Mortimer that she had come around a bend and saw a line of traffic in front of her, including a utility vehicle which was last, being about 50m in front of her. She stated that she had applied her brakes and tried to stop, but due to the wet road, her car had skidded. She stated further that in order to avoid hitting other cars, she had swerved to the left. This resulted in her hitting the embankment and she surmised that her car had rolled, then landed back on its wheels.

Senior Constable Mortimer's evidence

1. In another report (Exhibit F) it indicated a 'blind bend and road crest' and the author of the report opined that a driver had 'little to no time' to react to a vehicle in front and that no information was available to a motorist that traffic had stopped just up ahead to slow down or caution ahead. [2]
2. SC Mortimer was called as a witness for the plaintiff. He had ascertained that the accident involving the insured's head-on collision with the other car occurred between 1:00 and 1:30pm. He had learnt about the subject accident and arrived there at about 2:10pm where he saw the plaintiff's motor vehicle on the side of the road. He estimated that the distance between the two accident sites was 1-2km and that the subject accident had occurred at about 2:00pm. He recalled that it was raining and the road was sealed.
3. SC Mortimer described the stretch of road from both accident sites. It was a typical rural road, generally with single lanes in two directions, with the roadway winding around corners and crests. Specifically he described the layout from a point about 500m westbound from the subject accident site, from the direction that the plaintiff had been travelling. This part of the road was straight until about 100m from the site, where there was a sweeping bend to the left. SC Mortimer said it was not possible for a driver rounding that bend to see what was around the bend. But once rounded, there was an embankment on the left/inside of vehicles travelling west, and trees. SC Mortimer estimated that once rounded, there was a distance of about 30m (which he had traced by steps) from the point where the bend was rounded to the rear of the car in front.
4. SC Mortimer says he saw the plaintiff's vehicle on its wheels and alongside, or marginally ahead of, the vehicle (which SC Mortimer could only recall as being a 'family car') that it would have been behind. There had been no collision with that car. SC Mortimer later said in cross-examination that he did not observe tangible, or objective, signs of the plaintiff's vehicle having rolled over.
5. SC Mortimer said that this was the primary, or most direct, roadway for travel between Batemans Bay and Canberra; although it was also possible to get to Canberra if traffic drove north through Nowra, or south through Bega.
6. SC Mortimer accepted, in cross-examination:

• it was common for there to be heavy traffic through this roadway at busy times, such as holidays, or even Sunday afternoons;
• there were many potential hazards that motorists would have to bear in mind whilst driving along the roadway, such as potholes, wildlife, or roadworks which might cause motorists to slow down;
• any number of these things could cause a bank up of substantial traffic; and
• in the distance he had travelled to get from the first accident site to the second site, he had not encountered any other accidents.

1. SC Mortimer did not consider that, from the point where the plaintiff's vehicle rounded the bend, there was enough space for a car in her position to move to the inside of the vehicle in front for her to stop. In effect, all she could do to avoid collision with the stationary vehicle in front of her was to adjust her speed to avoid collision.
2. I regarded SC Mortimer's evidence as both credible and reliable.

Grant Spratt's evidence

1. Mr Spratt is a retired public servant. He is also an experienced and proficient driver; having driven for the Rural Fire Service. He was a motorist who regularly drove along the patch of road where the plaintiff's accident occurred; and thought the relevant stretch was of poor quality. (The Court was informed that it has since been altered in some non-specified way).
2. Mr Spratt's vehicle was travelling behind the plaintiff's vehicle in the lead up to the accident. He thought he was about 40m behind, or 5-6 car lengths. He could not estimate speeds at which the plaintiff's vehicle was travelling, before or after she had turned the bend, but did recall that he was generally travelling along the stretch at 70-80km/h and adjusted that speed when she was turning the bend, downward, to about 65-70km/h. He explained that as he came around the bend and saw that the traffic had stopped, he did not recall seeing the plaintiff's brake lights. He was able to brake to avoid colliding with cars ahead of him. He thought that after turning the bend, the last vehicle in front of him was at a distance of 50-80m in front.
3. Under cross-examination, Mr Spratt could not recall seeing the plaintiff's vehicle spinning 360 degrees; though he did see it move back down the embankment. He recalled seeing the plaintiff's car coming to a halt before the stationary car (the utility) in front of her. He opined that he was able to avoid colliding with vehicles in front of him because of the speed at which he was driving and his confidence in the condition of his car (which had an ABS (Anti-lock) braking system). He added, in effect, that if he had a car that was in a worse condition, he would have moderated the speed of the vehicle even further.
4. I regarded Mr Spratt's evidence as being both credible and reliable.

Mrs Spratt

1. Mrs Spratt was, apparently, in the vehicle with Mr Spratt. By the agreement of the parties' respective Senior Counsel, no adverse inference is to be drawn against the plaintiff for the decision not to call her to give evidence.

Exhibit 1

1. This document, admitted without objection, was titled 'How long it takes to stop (driving an average family car)'. It was a graph, with the two basic metrics being the speed and reaction distance (measured in metres) between braking and stopping the vehicle. There were two variations for braking distance: a dry road and a wet road. To take one example, and the relevant variation in this case, on a wet road, a car travelling at a speed of 60km/h would, upon braking, stop at about 54m.

THE MAC ACT ISSUE

1. Since the plaintiff sues the insurer directly, under s 113 of the MAC Act, a pivotal, or potentially dispositive, question is whether the plaintiff's injuries resulted from and was caused by a dangerous situation caused by the insured's driving of the vehicle; within the meaning of s 3A. If it did not, her claim fails.

The plaintiff's submissions

1. Senior Counsel for the plaintiff submitted that s 3A(1)(d) of the MAC Act was engaged. The insured's negligent driving of his vehicle caused traffic to be banked-up along the highway and created a 'dangerous situation'. It did not matter that the insured's driving did not immediately cause that situation, in terms of any close temporal connection to the later accident. The point of the insertion of s 3A(1)(d) into the Act was to remove the need for such temporal connection which was determined to follow from earlier legislation. It also did not matter that the location of the dangerous situation was one or two kilometres away from where the insured had his collision.
2. Mr Higgs SC submitted that s 3A(1)(d) was enacted to address the mischief arising from the Court of Appeal's decision in Zotti v Australasia Associated Motor Insurers Ltd (2009) 54 MVR 111; [2009] NSWCA 323 ("Zotti") and the perceived unfairness of denying an insured the ability to claim indemnity under a policy of insurance because of a temporal requirement of when the third party claimant's injury occurred; in relation to the negligent driving. He submitted that having acted to remove a temporal restriction, it would be counter-intuitive to construe the provision by reference to an unexpressed geographical limitation, as the defendant would urge. That is not indicated by the text, or the underlying context. The text indicated that consideration of whether a 'dangerous situation' was caused by the insured's driving of a vehicle had to proceed upon the proven or assumed premises that the insured: (a) was at "fault" (ie negligent) and (b) personal injuries were caused "by" that "fault" (negligence). Implicit in steps (a) and (b) were normative assessments that the insured owed a duty of care to all motorists; that such duty extended, in its scope, to the plaintiff (and others in her class); and that such duty not only satisfied factual causation but also the 'scope of liability' element. Once those normative assessments were made, it only remained to consider whether the personal injuries resulted from a dangerous situation caused by the insured's driving. But having regard to the circumstance that positive normative assessments were made in the claimant's favour, there was no need for the Court to engraft other unspecified limitations when construing s 3A(1)(d), as urged by the defendant.
3. Although Parliament was conscious of the need to keep premiums 'under control', this did not alter the situation. Once it was found, as it should be found, that the insured in this case was at 'fault', that is negligent, and further, once it was found, as it should be found, that his negligence caused the plaintiff's injuries, it was consistent with the notion that the hazard confronting the plaintiff generated a reasonably foreseeable risk of harm to her that the situation could be characterised as 'dangerous'. The injury that she suffered was not during a period of time, or in a place, remote from where the insured had his collision: the plaintiff's injuries were sustained probably within an hour of the insured's collision and only about a kilometre or two away from the insured's accident site. The plaintiff's accident occurred as part of the 'mopping up' processes that followed from that earlier accident, affecting or involving a range of actors: police, ambulance officers and other rescuers and other motorists whose combined actions inevitably resulted in traffic being blocked, and, unfortunately, in this instance, that circumstance could not be telegraphed (such as by warnings or hazard lights) in enough time to prevent the foreseeable risk that drivers, such as the plaintiff, driving on a wet road, slightly downhill, around a bend with a naturally obscured or limited vision of the stationary traffic ahead, might injure themselves to avoid the hazard put in their place.

The defendant's submissions

1. Senior Counsel for the defendant submitted that any traffic bank-up along the highway caused by the insured's driving was not caught by s 3A(1)(d) of the MAC Act. Mr Stone SC acknowledged that in the absence of any definition given to the term, whether a 'dangerous situation' was caused by an insured has been considered judicially, but essentially determined according to the facts of the cases without, with respect, a great deal of explication. Mr Stone SC suggested that the effect of s 3A(1)(d) could not have been as broad ranging as suggested in the extrinsic material but was principally directed towards the instance of rescuers arriving at a motor accident scene who become injured. At any rate, he submitted that for the purposes of the statutory provision, it must be conduct by the insured, when driving, which makes a situation 'dangerous'. Just as the state of fog along a stretch of road does not make driving dangerous unless it is driven through without regard to the state of fog, a traffic jam for an oncoming driver is not dangerous unless a driver does not adjust her driving to meet that circumstance. In both cases, what would make the situation dangerous would be if the driver travels at a speed that extended beyond the range of visibility [3] . Mr Stone SC referred the Court to the relatively few authorities that have looked at s 3A(1)(d) [4] , and in each of them there was at least some pronounced geographic connection, or proximity, between the place where the insured's negligence occurred and the place where the plaintiff was injured.

Factual issues

1. It is not certain whether the plaintiff was actually on the roadway when the insured had his collision. SC Mortimer estimated that the insured's accident happened at some time between 1:00 - 1:30pm (T 26.32); and that the plaintiff suffered her injuries at around 2:00pm (T 27.34). The plaintiff said that she had been driving for about half an hour (Exhibit G). I do not consider it necessary to be definitive about this since, in my view, it is not materially decisive, for the reasons which will be elaborated.
2. One contentious factual question relevant to the question of whether there was a dangerous situation was the distance at which the stationary utility became visible to the plaintiff as she rounded the bend. The evidence varied: 1. The plaintiff told police she saw the utility from 50m within a week of the accident (Exhibit G); 2. The plaintiff's evidence in Court was a distance of 20m and 15m (T43.40; T56.50); 3. SC Mortimer says that he paced out the distance and said it was probably between 30 and 40 steps and 30m (T30.40); and 4. Mr. Spratt estimated 50-80m of visibility (T75.18).
3. With no disrespect to him, on this issue, I did not consider that SC Mortimer's evidence was reliable. His measurement was not recorded in any contemporary document put before the court without being critical, it was not conspicuously forensic. It is unknown as to whether the utility had moved (thus rendering the stepping out exercise potentially inaccurate) by the time SC Mortimer arrived at the scene.
4. I take into account the contemporaneous recording on the COPS entry in which the plaintiff indicated that she was driving at 60km/h. Taking into account Exhibit 1, I find that it was most likely that the distance from the point that the plaintiff rounded the bend to the location of the stationary utility vehicle in front of the plaintiff's vehicle was between 50-65m.
5. On another point, SC Mortimer gave evidence (T 26-27) about his seeing a bank-up of traffic both at the point where he saw the insured, at his accident site, and the bank-up of traffic where the plaintiff had her accident. There was no direct evidence (in the COPS entry (Exhibit F) or elsewhere), however, estimating the number of cars which, like the plaintiff had rounded the bend and were travelling in a westward direction along Kings Highway. The plaintiff informed SC Mortimer that she saw a "line" of traffic stopped in front of her (Exhibit G). I infer that there would have been a great many stationary cars actually ahead of the utility vehicle which the plaintiff had striven to avoid; and further, that each of those cars (and the utility itself) had driven around the bend and, further, that each and every motorist had been able to stop without colliding into the vehicle immediately ahead of them. It is not the case, therefore, that the stationary vehicle which the plaintiff steered to avoid had only recently become stationary before the plaintiff had rounded the bend.

Sequence for considering the issue

1. Implicit in Mr Higgs SC's submissions, it seems to me, is that I should determine the issue of the application of s 3A of the MAC Act last. This follows from Senior Counsel's submissions that whether a dangerous situation was caused by the insured's driving depends upon, or was affected by, anterior findings that he was negligent and that such negligence caused personal injury to the plaintiff.
2. In my opinion, the issue can and should be addressed first, on the assumed premises that negligence and causation are established.
3. Section 3A(1), in (a), (b), (c) and (d), sets out certain 'events' in which the MAC Act will apply, once other conditions are satisfied. It ought to be possible to construe these events as not requiring the making of normative assessments of the kind that are made when considering the other conditions in s 3A (i.e. fault and causation).
4. I do not accept Mr Higgs SC's submission that whether a "dangerous situation" has arisen is affected by the circumstances that positive normative assessments are made on the issues of negligence and causation. In my view, whether any of the "events" has arisen may be considered independently.
5. That being so, the position is analogous to a defence, like s 5I of the CL Act, which the Court of Appeal has encouraged judges to consider ahead of ss 5B and 5D, as they potentially provide a complete answer to a claim under the CL Act. [5]

Text

1. Part 2.2 of Chapter 2 of the MAC Act provides for statutory third party insurance policies which indemnify owners and drivers of registered motor vehicles in respect of liability in negligence to persons injured as a result of motor accidents (s 10). The statutory insurer is liable to a person injured because of a driver at fault subject to restrictions in the MAC Act, like s 3A.
2. 'Driver' is defined (in s 3) to mean a person driving a motor vehicle. 'Fault' is defined (s 3) as meaning negligence or any other tort.
3. Section 3A of the MAC Act outlines restrictions in the application of the MAC Act. It provides: "(1) This Act (including any third-party policy under this Act) applies only in respect of the death of or injury to a person that is caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle and only if the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during - (a) the driving of the vehicle, or (b) a collision, or action taken to avoid a collision, with the vehicle, or (c) the vehicle's running out of control, or (d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle's running out of control."

Context

1. Section 3A(1)(d) was an amendment to s 3A. It was enacted by the Motor Accident Compensation Amendment Act 2010 (NSW) (Schedule 1).
2. In Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568 ('Allianz'), the High Court had construed the meaning of 'injury' in a predecessor provision to s 3A(1). In Zotti, a 5-member bench of the New South Wales Court of Appeal indicated that it was constrained by the High Court's decision in Allianz to hold that "during", where it appeared in an earlier version of s 3A(1), required a temporal connection between the plaintiff's injury and the insured's driving. On the facts, the Court of Appeal upheld the primary judge's finding that the claimant's injury was not sustained during the insured's negligent driving.
3. One of the stated objects of the Motor Accidents Compensation Amendment Bill was "to extend the compulsory third-party insurance scheme to include coverage of incidents and accidents that occur as a result of a dangerous situation caused" [6] by any or all of certain events; relevantly, the driving of a motor vehicle; in addition to incidents and accidents occurring during such events.
4. In the Agreement in Principle [7] Mr. Harris (the Parliamentary Secretary making the Second Reading Speech) explained: "The decision in the Zotti case results in two unsatisfactory outcomes. Firstly, the injured cyclist was not entitled to recover compensation from the compulsory third party scheme for his injuries. Secondly, the motor vehicle driver was not covered by his Green Slip insurance policy and could face the possibility of being personally liable to pay compensation … Common sense would dictate that any situation caused by a road accident that then results in an injury to another road user must be a dangerous situation and should be included in the definition of a 'motor accident' for the purposes of the motor accidents scheme….. While the number of such cases is anticipated to be extremely few, the change to the definition of 'motor accident' proposed by the bill will make sure that the cover or indemnity provided to the vehicle driver by his or her compulsory third party policy is always co-extensive with the driver's liability. It will remove an impossibility of a motorist having to meet, from his or her own pocket, the cost of defending an action by an injured person seeking compensation. In making this change to the motor accidents scheme, the Government is also concerned to ensure that the affordability of the green slip scheme is not jeopardised. It's important to clarify that the proposed extension of the definition of 'motor accident' will expand the coverage provided by the compulsory third party policy to dangerous situations resulting from motor accidents but only in circumstances where the driver is liable for that dangerous situation. Accordingly, this change will not make a compulsory third party insurer responsible for situations which some other party, such as a road authority or property owner, currently has responsibility…." (emphasis supplied)

Purposes

1. By s 5 of the MAC Act, as it then was, the court is obliged to take into account a range of potentially competing or conflicting objects, including the provision of compensation for compensable injuries sustained in motor accidents (s 5(1)(b)), but also premium affordability and stabilisation of claim numbers (ss 5(1)(d), 5(2)(a), and 5(2)(c)).
2. Given these conflicting objects, it is challenging to adopt a purposive construction of s 3A. As Gleeson CJ once said, Parliaments rarely pursue a single purpose at all costs [8] .
3. Although Parliament responded to the construction given to s 3A(1) in response to the Court of Appeal's decision in Zotti, that decision was itself powerfully influenced by the High Court's decision in Allianz. In Allianz, observations were made by some of the Justices as to the legislative purposes of Part 6 of the MAC Act. For example, McHugh J noted (at [53]) that the MAC Act did not provide a universal compensation scheme, for all injuries sustained in connection with a motor vehicle. His Honour also referred to cost-saving and the need to keep the scheme affordable as being significant objects of the MAC Act. The third matter was a tightening of the definition of 'injury' (in the predecessor to s 3A(1)) by reference to its cause.
4. In Zotti, observations were also made by Allsop P that a policy underlying what was the former iteration of what is now s 3A(1) was to "reduce" the scope of insurance cover ([45]).
5. A question arises as to the currency of those observations in the light of the amendment made by s 3A(1)(d). In my view, those purposes have not gone away and notwithstanding the purposes articulated in the extrinsic material about the provision, s 3A(1)(d) needs to be construed in a fashion as harmoniously with the balance of s 3A as possible [9] . Section 3A(1)(d) was a particular response to what Parliament viewed as the inconvenience arising from a construction requiring temporal connection between the claimant's injury and the driver's driving.

Analysis

1. I am prepared to assume, for present purposes, that a 'result' of the insured's conduct was that a traffic jam was created in the vicinity where the plaintiff's injury occurred. I am also prepared to assume, again for the purposes of the present analysis, that the 'fault' of the insured caused that 'result'.
2. I further proceed on the basis, for this part of the argument, that for the purposes of s 3A(1)(d), personal injury to the plaintiff, caused by the insured's fault was the result of and was caused during a 'situation' caused by the insured's driving of his vehicle. The word 'situation' is referable to the coming into being of a certain state of affairs. That situation was what the plaintiff called a 'banking-up of traffic' of vehicles travelling west along the Kings Highway; or which, I think can, for ease of analytical purpose, simply be described as a 'traffic jam' in that direction.
3. The question, to my mind, is whether that situation which the insured's driving caused, was "dangerous".
4. There is no definition of the expression 'dangerous situation' in the relevant Part of the MAC Act, or indeed anywhere else in the MAC Act. Only limited authorities supplied to the Court by Counsel have dealt with the matter and, with great respect to those who have considered the expression, there has been little judicial exegesis as to what it means.
5. The notion of a judge resorting to dictionary definitions to aid in identifying the meaning of a statutory term has been deprecated; but even so, it may at least assist with identifying the literal meaning, or a range of literal meanings, of a term [10] . With that modest objective in mind, I note that one definition of 'danger' is something that "causes or is likely to cause harm" [11] . If that definition was appropriate, however, the concept would be little different to the term 'risky', or 'harmful'. But another connotation is that the situation is 'full of' [12] or 'fraught' [13] with risk. This connotation elevates the significance of the risk of harm. The connotation is quantitative. 'Dangerous' is a strong word.
6. I agree with the defendant's submission that observations in the extrinsic material are not illuminating. The proposition that any situation resulting in the injury of another road user caused by a road accident, which then results in an injury to another motorist, is "dangerous" is apt to induce a level of determinism based only upon causation without reference to the nature, or character of the situation which the insured has created. On that basis, Parliament might as well have omitted the word 'dangerous' altogether. The word 'dangerous' plainly must have work to do and the situation must, by its nature or character, be 'dangerous'.
7. The extrinsic material itself indicates competing purposes and objects, including not only a desire to justly compensate claimants, but also a desire to have a sustainable scheme for insurance premiums.
8. As I have noted, s 3A(1) was generally construed by the High Court in Allianz and by the Court of Appeal in Zotti in a restrictive fashion. Parliament has intervened to reform one aspect of the construction of the provision; insofar as it concerns the temporal connection between the event (negligent driving) and the claimant's injury. Understood in its context, section 3A(1)(d) created a new event: a dangerous situation (caused by other events, including relevantly driving) as part of a provision generally directed to restricting the scope of rights of recovery under the MAC Act. The 'purposes' point in different directions.
9. In my view, in s 3A(1)(d) Parliament was addressing a discrete problem. On my construction, the issue is not whether there was any coincidence in time between the insured's negligence and when the plaintiff suffered her injury (though that is very relevant to the tort issues to be considered further below). The present issue is simply whether the situation that the plaintiff faced was dangerous.
10. This is an occasion where, for reasons that I have suggested, textual and contextual considerations point against the plaintiff's construction; supported, to some extent, as that construction may be by what was said in the extrinsic material. The textual construction I favour is in order for the MAC Act to apply, the insured, through his or her driving (or one of the other events in s 3A(1)(b) and (c)) is responsible for causing a situation which presents a significant risk of personal injury to another person.
11. As something of a cross-check against that construction, some, albeit small, assistance may be derived from the principle of statutory construction that, in the absence of contrary intention, it may be presumed that Parliament intends to attach the same meaning to the same word when used in a subsequent statute in a similar connection [14] . At least, the express definition in the earlier statute assists with understanding the ordinary and natural meaning of the expression [15] . In s 5K of the CL Act, a "dangerous" recreational activity is defined as a recreational activity involving "significant risk of physical harm" (emphasis added). Doubtless it is true that there are different objects and purposes as between Part 1A Div 5 of the CL Act and s 3A of the MAC Act. Driving, under the latter legislation, may subsume driving undertaken for recreational purposes, but only as a small subset of the range of instances of driving. Accepting the differences, there are similarities. Both provisions are substantially directed towards restrictions in liability; and, especially, both are enacted in the context of Parliament's concern about the incidence and availability of insurance (even if the insurance risk is qualitatively different). Both are substantially directed to activities likely to result in physical injuries. To construe the word in a way which emphasises the significance of a risk of physical harm appears appropriate in context, since in the ordinary course, the driving or operation of a motor vehicle, and the potential effects of driving, may cause significant risk of a person suffering physical injury. But by my construction of s 3A(1)(d) the dangerous effects of the driving must be proven; they are not assumed.

Application

1. There are certain relevant facts. First, because of the significance of the highway as the primary route for vehicular travel from the southern coast towards Canberra, there may be any number of reasons, including, but not limited to, the occurrence of a motor accident, which might generate a significant bank-up of traffic at the subject accident site; particularly on busy Sunday afternoons when the subject accident occurred. Secondly, these were known to the plaintiff. Thirdly, the topography or layout of the road where the subject accident occurred featured a blind spot for a driver, such that the view of a motorist driving westward around a bend was obscured by the embankment, prior to the bend being rounded. Fourthly, rules of the road not only require motorists to drive in a way as to ensure a sufficient distance between their vehicle and the one in front so as to deal with sudden braking, but, more generally are designed to ensure that motorists drive safely at all times. It could hardly be doubted that motorists about to round a bend where visibility on the other side of the bend is wholly or partly obscured, are expected to reduce their speed to meet the contingency that some obstacle presents itself around the bend. Especially is that so when the weather and the road conditions are such that a greater period of time is required to bring a motor vehicle to a stop than would be the case if the road conditions were dry.
2. I struggle to see how a line of up of stationary motor vehicles banked-up in a traffic jam presents a significant risk to a motorist of physical injury who approaches the last of the vehicles in that traffic jam. The fact that a line-up of stationary cars is present on a roadway is not of itself threatening. To be sure, one of the drivers in the jam might, after a time, lose patience, or concentration with the control of his or her vehicle, and collide with another either in front of or behind it. But when stationary, motor vehicles do not ordinarily cause harm.
3. There must be something else that creates a significant risk of harm. It was not suggested to have been the topography - the circumstance that the traffic jam happened to be just around the bend. It was not suggested that a wet road or rain meant that the location of the traffic jam presented risk. It was not suggested that the insured's driving was responsible for those particular circumstances. To the extent that there was any risk of harm, it arose because the oncoming motorist did not appreciate that a traffic jam was ahead of her and did not adjust her speed sufficiently in time. Ordinarily, drivers are expected to react to the eventuality of a traffic jam, just as they are expected to react to other hazards on a road. The risk that a motorist in, or approaching a traffic jam, might suffer harm is ordinarily not significant.
4. Whilst I accept that the insured's negligent driving a kilometre or two away caused the traffic jam in the vicinity where the plaintiff was driving, it is another thing to say that the traffic jam he was responsible for generating was a 'dangerous situation'. Pejorative assertions that the insured created a 'mess' or that others, such as police or ambulance officers, had to attend to 'mopping up' operations as a result of his negligence, which would necessarily generate chaos elsewhere, obscures the identification of what it was that made this traffic jam dangerous. A traffic jam is a regular incident of driving along roads, especially country roads like this one, and an incident that the plaintiff was fully aware of (T 48.50). It was not the plaintiff's case that her collision was unavoidable or inevitable.
5. I am not persuaded that the traffic jam which the plaintiff confronted as she was driving along the Kings Highway, even after passing the bend, was a dangerous situation. As I have said, it could not be dangerous because of any shortness of vision as the plaintiff drove around the bend into the traffic jam. The evidence did not indicate that the utility was only just around the bend, such that no matter how much the plaintiff reduced her speed, it was inevitable, much less even likely, that she faced the risk of colliding with it. The evidence suggested that she was likely to have had visibility of between 50 and 60m. All the other motorists in front of her - and Mr Spratt, who was behind her - driving in the same direction had previously confronted and responded to the same challenge as the plaintiff faced, without incident. I do not accord weight to the opinion of SC Mortimer recorded in Exhibit F. No express basis was given for it and, I infer, it may be reflective of SC Mortimer's estimate of the distance which, for reasons indicated earlier, I do not accept. It could not be because of the rain or the wet condition of the road. The plaintiff and every other driver had adjusted their speed to account for the weather and road condition.
6. If there was any 'danger' at all, it was the plaintiff not sufficiently adjusting her speed or keeping a proper lookout as she had rounded the bend which caused it. The insured's driving of his vehicle was not responsible for that.
7. Accordingly, I am not satisfied that the plaintiff can bring her case within s 3A(1)(d) of the MAC Act.
8. My findings on s 3A are dispositive. But in deference to Counsels' arguments, and to meet the contingency that I am wrong in my interpretation and application of s 3A(1)(d), I now go on to consider the remaining issues raised by the parties.

The parties' submissions

1. Senior Counsel for the plaintiff submitted that it was sufficient to establish a duty of care in the insured to the plaintiff that his driving would create the foreseeable risk of injury to a class of drivers, in the position of the plaintiff, colliding with stationary traffic as they came around the bend. Mr Higgs SC articulated that for actions for damages for personal injury, reasonable foreseeability was the primary criterion. It was not necessary for the insured to foresee, precisely, the way in which other road users might be injured [16] . Here, the plaintiff suffered personal injuries within a one or two kilometre zone of the insured's collision site; that collision generated a deal of chaos on a busy roadway, and inevitably create a 'parking lot' - a series of stationary vehicles - and at a time when warning signs could not be erected to assist drivers like the plaintiff approaching such a logjam. Further, he argued, the scope of the duty was to exercise reasonable care to keep other road users safe.
2. By its defence (as amended), the defendant admitted that the plaintiff was a road user, but it denied that the insured owed the plaintiff a duty of care. Senior Counsel for the defendant submitted that the real issue was the scope of the duty of care. He rhetorically asked where might one 'draw the line' when considering the scope of a duty and argued that there was neither geographical proximity, between the site where the insured's negligence resulted in a collision and where the plaintiff's accident occurred; nor temporal proximity, between the times when both accidents occurred. With reference to the significance of the roadway providing the principal, or most direct, route from the South Coast of New South Wales to Canberra, Senior Counsel questioned whether the insured's duty of care could extend to motorists driving 5 km, or 50 km away from the location where the insured's negligence occurred.
3. Mr Stone SC identified that the scope of any duty of care was not to any motorist on the same roadway where the insured had his collision, but one owed only to those other motorists on the roadway who were apt to experience the temporal and geographical consequences of negligent driving by the insured. In paraphrase of what Lord Atkin said in Donoghue v Stevenson [17] , the duty owed by the insured was to people in the 'neighbourhood'; not 'in the next suburb'.

Consideration

1. The issues of breach of duty and causation are to be determined by the provisions in Part 1A of the CL Act (s 3B(2)). The provisions of Part 1A do not, however, regulate the circumstances in which a defendant will owe a duty of care, or the scope of the duty of care. This is matter for general law.
2. It could hardly be denied that a motorist owes a duty of care to other road users [18] . But this case raises the question 'which ones'? For example, was the duty of care owed to any motorist driving, as this plaintiff did, in a westward direction, along this road from Batemans' Bay to Canberra and if so, for how long after the insured had his collision? Is the duty of care owed even to a person who may not have been a road user at the time of the insured's negligent conduct, but subsequently becomes one?
3. In RTA v Dederer (2007) 234 CLR 330, Gummow J (Callinan and Heydon JJ agreeing) (at [43]) distinguished between the existence of a duty of care and its scope, or content. His Honour said that duties of care "are obligations of a particular scope, and that scope may be more or less expansive depending on the relationship in question" (emphasis supplied).
4. In Sydney Water Corporation v Turano (2009) 239 CLR 51, in its joint judgment the High Court said (citations omitted): "Reasonable foreseeability of the class of injury is an essential condition of the existence of a legal obligation to take care for the benefit of another. The concept is relevant at each of the three, related, stages of the analysis of liability in negligence: the existence and scope of a duty of care, breach of the duty, and remoteness of damage. At the first stage, the inquiry has been said to involve the assessment of foreseeability conducted at "a higher level of abstraction" than at the subsequent stages. However, to speak of a higher level of abstraction in dealing with that first stage does not support a formulation of duty in terms devoid of meaningful content. It remains, as Gleeson CJ observed in Tame v New South Wales, that the concept is to be understood and applied with due regard to the consideration that, in the context of the issue as to duty of care, it is bound up with the question of whether it is reasonable to require a person to have in contemplation the risk of injury that has eventuated."
5. In considering whether it is reasonable to require the insured to have in contemplation the risk of physical injury suffered by the plaintiff, it is important to go back to first principles.
6. As Professor Fleming explained, the functional importance of the 'duty issue' developed as one of a number of control devices to limit liability. Without it, the imposition of any loss suffered by anyone as a result of carelessness would impose too severe and indiscriminate a restriction on freedom of action by exposing the actor to the prospect of unpredictable liability [19] . As Professor Fleming also observed, no generalisation exists which could solve the problem. In Donoghue v Stevenson [1932] AC 562, Lord Atkin's famously espoused his 'neighbour' test whilst acknowledging doubts as to whether an all-encompassing definition could ever be devised.
7. Senior Counsel for the defendant referred to the following passage from Herron J's decision in Dwyer v Southern [1961] SR(NSW) 896 at 900, in attempting to apply Lord Atkin's 'neighbour' test in the context of personal injuries sustained as a result of a motor accident: "I would have thought that a broad application of that principle would be apt in the case of persons lawfully using the highway and who are injured as a result, even though not the direct result, of the negligence of the driver of a motor car on the highway; in other words, whose negligence was the proximate cause of the damage. That may be said to be putting the case too broadly, because it might apply to an infant or a variety of other persons on the highway and have no regard to what they were doing at the time or their connection with or their proximity to the collision, and whilst I think that possibly the matter might be rested on such a broad definition, I do not propose to bind myself entirely by it." (emphasis supplied)
8. I raised with Senior Counsel for both parties during argument whether statute, and especially, the provisions of the MAC Act (or any other legislation), bore on the question of duty, or its scope. They agreed (emphatically) that it did not. That being so the Court does not need to address the question of whether the recognition of a duty of care of this insured to this plaintiff would conflict with any statutory scheme for liability [20] . The defendant did not refer to any other matter considered by the High Court in Sullivan which would indicate any lack of coherence between recognition of the duty of care being extended to a person in the plaintiff's position and circumstances and other rights or obligations in law which would militate against the duty.
9. The parties do not suggest that any clear 'policy' can inform the Court's assessment of whether a duty of care is owed here. It is difficult, in any event, to ascribe primacy to the policy of favouring injured persons seeking compensation as distinct from taking into account the question whether the negligent driver is insured. One person's right to recover damages is another person's liability [21] . The policy choice might strike some as clear-cut, but not necessarily so where it is problematic whether a person is covered for insurance.
10. In Sullivan, if not before, the High Court sounded the death-knell for the test of 'proximity' after the test had been derided for its conclusory nature. So too, the Court rejected the three-stage approach (of 'foreseeability, proximity and what is fair and reasonable') identified by Lord Bridge in Caparo Industries Plc v Dickman [1990] 2 AC 605 at 617-618.
11. It is no answer to the present problem to say that precedent determines the question. No precedent of a duty was furnished by the plaintiff in this case which corresponded to, or even resembled, the applicable facts. Statements to the effect that it is a well-established category of a relationship of a duty of care in motorists tend to presume that a claimant motorist has been in a collision [22] or in the vicinity of [23] a collision with the insured. The paradigm case which has looked at the question deals with a claimant who has suffered personal injury from his or her own motor vehicle's collision with an insured's vehicle. That is not this case. Nor is it case where a motorist's negligent driving has given rise to exceptional instances of liability, such liability to a rescuer, an unborn child, or to someone who has suffered mental harm upon hearing of the news of a close associate being involved in a motor vehicle accident. That means that whilst, ordinarily, it would be preferable to view the scope of duty incrementally, there is little or no guide in precedent as to how far the scope of the motorist's duty may extend.
12. In D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, McHugh J said (at [101]) that: "[r]easonable foreseeability of physical harm is generally enough to impose a duty of care on a person who knows or ought reasonably foresee that physical harm is a likely result of his or her conduct" (emphasis supplied).
13. Professor Fleming observed that a prospective plaintiff 'cannot take advantage of the fact that the defendant happened to be committing a wrong to someone else; (s)he must bottom his (her) claim on violation of a right of his (her) own' [24] . Professor Fleming cited two decisions, one of them being Palsgraf v Long Island R.R (1928) 162 N.E. 99 and the other being Bourhill v Young [1943] AC 92. In the former decision, it was said that the "risk reasonably to be perceived defines the duty to be obeyed and risk imports relation…". That was a case of personal injury sustained by a person who was some distance away from a train, when train guards, assisting a passenger on the train, caused fireworks to fall from his arms. The plaintiff was assessed as being beyond the range of foreseeable peril.
14. In the latter decision, the House of Lords held that the duty of the motor cyclist on a public road to other persons using it was to drive with such reasonable care as would avoid the risk of injury to such persons as (s)he could reasonably foresee might be injured by his (her) failure to exercise that care and determined (on the facts) that the claimant was not within the area of potential danger arising from the defendant's negligence; so that no duty of care was owed to the claimant. Lord Wright (at 108-109) emphasised that the claimant in that case could not build on a wrong to someone else, but determined that the ambit of persons affected by negligence may extend beyond those actually subject to physical impact, such as rescuers, or those who suffer (what was then described as) nervous shock. But on the facts, the duty of care was denied: the claimant heard a noise, without knowledge of the reason for it and knew nothing about the accident until much later on. Lord Wright said (at 111) "The appellant was completely outside the range of the collision."
15. The latter decision was affected, with respect, by the then limited understanding of mental harm as not being an actionable injury in tort law; which for reasons explained in Jaensch v Coffey has long since been displaced. Thus Deane J observed in Jaensch v Coffey that the facts constituting a road accident and its aftermath are not necessarily confined to the immediate point of impact, but may extend "wherever sound may carry and to wherever flying debris may land. The aftermath of an accident encompasses events at the scene after its occurrence, including the extraction and treatment of the injured. In modern society, the aftermath also extends to the ambulance taking an injured person to hospital for treatment and to the hospital staff itself during the period of immediate post-accident treatment." [25] This reasoning influenced his Honour's conclusion that the claimant in that case, suffered mental harm as a result of what she saw and heard in the hospital.
16. But the plaintiff here was neither a rescuer who suffered physical harm in trying to arrest or prevent the spread of injury or harm resultant from the insured's breach of duty; nor was she someone who suffered mental harm as a result of a loved one being caught up in the 'mayhem' associated with the insured's collision; nor were her economic interests infringed.
17. That being so, in my view, cases such as Palsgraf and Bourhill remain good law insofar as they deal with the position of a person suffering physical injury who may fairly be characterised as lacking any geographical and temporal connections with the conduct of the tortfeasor, [26] as Professor Fleming had argued. As indicated earlier, the Court of Appeal's decision in Seltsam Pty Ltd v McNeill [2006] NSWCA 158 demonstrated that a foreseeable risk of personal injury to one class of plaintiff does not necessarily equate to a foreseeable risk of personal injury to another class of plaintiff. Insofar as the plaintiff's interest for which she seeks legal protection - personal injury - is concerned, in my assessment, she was not in a situation where the insured's negligent driving put her in danger of direct physical injury.
18. This is not a purely novel case to consider duties of care. In the legion of motor accident cases that come before this Court, issues about the existence and scope of a duty of care are seldom in issue. As I have said, whilst it is desirable to consider the question of duty in an incremental fashion, there is little to guide that consideration other than the decisions in Palsgraf and Bourhill identified.
19. As one cross-check I propose for analytical purposes to apply the approach of identifying what are material 'salient' features summarised by Allsop P in Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649. The foreseeability of harm is not high, but where the harm is personal injury, it does not ordinarily need to be. I do not consider that 'vulnerability', in the sense understood [27] , arises. It seems to me, as indicated earlier, that a reason contributing to the plaintiff's collision was that she had an impeded view prior to her turning the bend along the highway. That was not something over which the insured had any control. Of course, he had - and lost - control over driving of his own vehicle, but that was at a point 1 - 2km away from where the plaintiff had her accident. There could be no actual (or constructive) assumption of responsibility on the insured's part to take care to prevent personal injury to another driver who at the time of the collision, either (a) may not even have actually been on the road; or (b) if that driver had been on the road was, as far away from the collision as the plaintiff had been. I have already indicated that if the traffic jam posed a risk of physical harm, it was not a significant one. An important concern of the law is to avoid the imposition of indeterminate liability. Contrary to the submission of Senior Counsel for the plaintiff, this is not a facile 'floodgates' argument to be disdained. If the insured owed a duty of care to the plaintiff by his conduct in instigating a traffic jam along the highway, conceivably he would have owed a duty of care to every other driver on the highway injured in a traffic jam; regardless of how every other driver was so injured. Another pertinent consideration is the absence of actual knowledge of the risk of harm. It is difficult to accept that the insured knew of the risk that somewhere else along the highway, at what might have been a different time than when he was driving, another motorist might injure herself when driving off the road to avoid a stationary car in front of her. On the contrary, and as a general rule, if he turned his mind to the question, he would probably expect that a driver would, in conformity with his or her requirements of road rules, adjust his or her speed to avoid rear-ending a car in front; whether stationary or not. Finally, consideration is to be given to the reasonableness of the requirement that the insured have a person in the plaintiff's position in contemplation.
20. On balance these considerations incline me to consider that the insured did not owe a duty of care to the plaintiff. The only consideration in support of the plaintiff's case is foreseeability, but as the High Court held in Sydney Water Corporation, foreseeability, though necessary, is insufficient. Notwithstanding that the infringed interest of the plaintiff was safety to her person, where, as McHugh J has said, foreseeability is generally enough, in my view, this is an unusual case where it is not.
21. In that context, and as a further cross-check on the above conclusion, when returning to Lord Atkin's neighbour principle, at a time the doctrine of 'proximity' was in or approaching its heyday, Deane J, in Jaensch v Coffey referred to the notion of 'physical proximity' embracing "space an (sic) time". There was no "circumstantial proximity" between the roadway at the time of the insured's negligence. "Causal" proximity was tenuous. The traffic jam was at most an indirect consequence of the insured's negligence. The insured's negligence had a historical connection. In my opinion, there would be, under the old test, no 'physical proximity' here, as between the insured's conduct and the plaintiff's injury. I accept the defendant's submission that there was an absence of both a geographic connection and a temporal connection. She was not caught up in the immediate 'mayhem', in which other actors (police or ambulance or highway authority personnel) rush to get to the scene and, in doing so, necessitate often sudden movements in motorists; thereby posing risks to driving. Even under these alternative approaches to considering the problem, the duty would not extend to the plaintiff.
22. There was nothing sudden about the situation confronting the plaintiff. I consider that it would be unreasonable, at the time and place where the insured lost control of his vehicle, for him to have had in his contemplation the risk that a person, who may not even have been on the road or, if she was on the road at the time as his collision, was 1 or 2 km away; and on the other side of the roadway that he was driving on, might get injured in a traffic jam. I do not find that the plaintiff was the insured's 'neighbour'. She was not 'in his vicinity' when the insured lost control of his vehicle. In the circumstances, the scope of the insured's duty of care to motorists on the roadway did not extend to exercising reasonable car to prevent physical harm to this plaintiff.
23. In case I am wrong on the Duty issue, I propose to consider the remaining liability issues for the action in negligence.

The 'risk of harm'

1. In her statement of claim, the plaintiff contended that the 'risk of harm', for the purposes of s 5B(1) of the CL Act was that "as a result of the first motor vehicle accident caused by the insured, traffic would be stopped, causing a bank up of vehicles on the Kings Highway, which is a windy road, placing fellow road users at risk of a consequent motor vehicle accident."
2. The defendant disputes that characterisation. Mr Stone SC submitted that the risk of harm was that a stationary line of traffic would cause injury to other motorists at a location remote from where the insured was located.
3. The defendant submitted that even if the standard of foreseeability was relatively undemanding, it had to have teeth. In addition to assessing the risks of his conduct harming motorists in his immediate vicinity at the time and place, of the subject driving, the insured was entitled to factor in, amongst other things, his expectations that other motorists, on a different stretch of the same road would drive consistently with regard to his or her own safety: he could not be taken to have foreseen that the plaintiff, situated at least a km away would rear-end another motor vehicle in a traffic jam.
4. Mr Higgs SC emphasised, primarily with reference to the argument on contributory negligence, but still relevant to the issue of breach, that the defendant had admitted that a breach of duty of care (to whomever that was owed) had led to the insured crossing over onto the wrong side of the road and causing a major traffic collision. It was reasonably foreseeable that by that conduct, he would generate 'one big mess', requiring the participation of police and ambulance officers and, inevitably, generating a traffic jam. This created a hazard to a car, in the plaintiff's position, unexpectedly coming upon a queue of parked cars and, in the emergency imposed upon her, acting in a way likely to cause her injury by taking action in response.

Consideration

1. Section 5B of the CL Act requires the Court to identify, first the 'risk of harm', before considering other questions, such as whether that risk of harm was foreseeable and not insignificant, and finally, whether reasonable precautions were taken in response to the risk.

'Risk of harm'

1. As Leeming JA observed in Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752 at [119], it may not be possible to distil a single correct formulation of the risk of harm. Of course, the risk of harm which the insured was required to turn his mind to in respect to the vehicle that he collided into on one stretch of the road is likely to be different to the risk of harm to other motorists, on a different part of the same road, at a different time, approaching a traffic jam.
2. In Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v The Workers Compensation Nominal Insurer (2018) 98 NSWLR 171 Payne JA (McColl JA agreeing; White JA not deciding on the application of the point) at [43] said that the identification of the risk of harm had to identify: (a) the true source of potential injury and (b) the general causal mechanism of the injury sustained.
3. I consider that the risk of harm may be defined as the risk that a motorist might injure herself in her attempt to avoid colliding with another motor vehicle in front of her when that other vehicle was stationary in a traffic jam resulting from a collision of vehicles on another part of the same roadway resulting from the insured's negligence.

"Foreseeable" risk

1. The foreseeability question, at the level of breach, is relatively undemanding. As Glass JA said (at 295-6) in Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268 [28] , there is a requirement for proof of foresight that the defendant's negligence might cause damage of some kind to the plaintiff's person (or property).
2. The defendant distinguishes between the position of the insured having foresight about the risk of harm to those motorists whose ease of passage on the roadway came under immediate challenge as a result of the insured's collision and having foresight about the risk of harm to those who are injured as a result of a collision in banked-up traffic.
3. In my view, it is difficult to draw the bright-line distinction which the defendant invites the Court to draw. I consider that the insured would constructively have been aware that negligent driving by him could, in its aftermath, generate a traffic jam; and, further was or should have been aware that traffic jams are apt to require drivers to adjust their driving; and further, not all drivers may adjust in a reasonable fashion (including complying with road rules).
4. Nor do I consider that the risk of harm is any less foreseeable to a person in the position of the insured because of a reasonable expectation that drivers are taken to drive safely on the road. It was not explained why the foresight of a motorist is to be equated with the foresight of a highway authority. The question of whether this particular plaintiff did drive safely is relevant to the quantification of risk, shortly to be considered; but also the issue of contributory negligence; to be considered later in these reasons.
5. I consider that the risk was foreseeable.

"Not insignificant" risk

1. In Benic v State of New South Wales [2010] NSWSC 1039 at [101], Garling J construed the phrase 'not insignificant' as being intended to refer to the probability of the occurrence of risk. I respectfully adopt that interpretation. I also respectfully agree with the proposition of Mr Villa SC in his text [29] that the expression disregards the magnitude of the resulting harm (with that matter being relevant to the question raised in ss 5B(1)(c)and 5B(2)(b)). "Not insignificant" risk is quantitatively very different to "significant" risk, a matter which was touched upon earlier in these reasons addressing the MAC Act issue.
2. But for much the same reasons indicated earlier in relation to the MAC Act issue in s 3A(1)(d), I am not persuaded that the risk of harm, as I have characterised it, meets this test. On the facts as they apply to the position of this particular plaintiff, including when she drove and the absence of geographic connection to the site where the insured collided with the other vehicle, it has not been shown that the risk of her injuring herself when confronting the stationary traffic was anything but low. The risk could only be enlivened by the plaintiff not driving safely in the circumstances confronting her; when every other relevant driver had dealt with it and road rules were such that drivers were reasonably expected to manage such risk. The risk of harm was insignificant.
3. No submission was made by the defendant that if, contrary to what I have found, s 5B(1)(a) and (b) were both satisfied, a finding of breach of duty would not follow when applying the criteria in s 5B(1)(c), with reference to s 5B(2). In my view, it is unnecessary in the circumstances, to consider the matter.

THE CAUSATION ISSUE

1. My provisional consideration of this issue is premised upon findings (not made) that the insured was in breach of his duty of care to the plaintiff.
2. The defendant concedes that the requirement for factual causation (in s 5D(1)(a)) is established.

Parties' submissions

1. The defendant submits that the scope of liability requirement is not satisfied. It submits that it is inappropriate for the scope of the insured's liability to extend beyond both temporal and geographic connection to the plaintiff. Further, to extend the scope of liability towards a person in the plaintiff's position would give rise to the risk of indeterminacy in the extent of liability. Injuries to a person in her position, in other words, would be regarded under the general law, prior to the enactment of the CL Act, as being 'too remote', or indirect.
2. The defendant submitted that it was precisely because of the relatively undemanding standard for proof of 'foreseeability', as a criterion for both recognition of a duty of care, and satisfaction of s 5B(1)(a) and (b); as well as another undemanding standard for proving the requirement of factual causation that the 'scope of liability' element in s 5D(1)(b) was enacted. Otherwise, the prospect of banked-up traffic over a long stretch of road, and over an indefinite period of time, might give rise to indeterminate liability in an insured.
3. In its written submissions, the defendant also submits that, under s 5D(4), it would not be appropriate to impose responsibility on the insured when it was the plaintiff who failed to control her vehicle when confronted by stationary traffic in front of her.
4. The plaintiff submits that the defendant's argument is nothing more than a 'floodgates' argument. The accident that befell the plaintiff occurred because of a problem created by the insured. The High Court in Wallace v Kam (2013) 250 CLR 375 ("Wallace") had noted that s 5D(2) would, generally, adopt or accommodate pre-existing general law; and this included a legion of instances where a defendant's conduct generated a hazard on a roadway in the critical phase of mopping up operations after a motor accident. There was no supervening event which broke the nexus between the insured's negligence and the damage sustained because of the materialisation of the risk to the plaintiff posed by the hazard that the defendant was responsible for creating [30] .

Consideration

1. As noted, the defendant concedes that factual causation is made out.
2. That being so, it is unnecessary to consider the application of s 5D(2), which is only potentially applicable when the 'but for' test is not made out [31] . That leaves for consideration the 'scope of liability' element.
3. In Wallace the High Court analysed the 'scope of liability' element (s 5D(1)(b)). At [11], the joint judgment characterised the element as raising a normative question as to whether legal responsibility for that particular harm occurring in that way should be attributed to a particular person. This issue could properly be answered through the application of precedent; but if precedent was not applicable, the question was substantially connected with, if not often (but not always) coextensive with the scope of, or content of, the duty of care ([22]-[26]).
4. In Monaghan Surveyors Pty Ltd v Stratford Glen-Avon Pty Ltd [2012] NSWCA 94, decided prior to Wallace, Basten JA suggested that the normative inquiry under s 5D(1)(b) would pick up other notions in the common law, including, but not limited to 'remoteness'.
5. I find it difficult to see why the scope of liability for breach should not follow determination of the question concerning the scope of the insured's duty of care.
6. But on the provisional basis I am considering the question, I see no reason why this element would not be satisfied. Senior Counsel for the defendant made submissions on this issue grounded in policy, but did not suggest that any doctrine of novus actus intervenes applied to break factual causation. Where a first motorist breaches a duty of care owed to a second motorist in a way which has caused physical injury to the latter, where such injury would not have been caused but for the first motorist's breach, it is appropriate for liability to follow.

THE CONTRIBUTORY NEGLIGENCE ISSUE

1. The defendant (who carries the burden of proof on this defence, or limitation of liability) acknowledged the dearth of authority supporting reduction of a plaintiff's damages award to nil on account of contributory negligence. That said, the defendant submits that, the vast proportion of responsibility should be allocated to her. The stationary traffic line should not have presented a danger to a driver exercising reasonable care for his or her own safety. On the facts, it did not present any danger to Mr Spratt. The defendant eschewed any suggestion that this is a case where s 5S of the CL Act may apply, so that the plaintiff's damages should be reduced to zero. The defendant submits that an 80% finding as to contributory negligence would be appropriate.
2. The plaintiff submitted that the critical factor of comparative culpability, as between plaintiff and the insured, had to be considered from the starting position that the defendant had pointed to nothing to mitigate the circumstances in which the insured drove onto the wrong side of the road and created the hazard for a large class of persons, including the plaintiff. Set against that, the plaintiff was less culpable in relation to her injuries: she drove well within the speed limit - indeed, she had reduced it because of the conditions of the road and the weather - and she was startled and ill-equipped to respond to the hazard which the insured's conduct had created. She may not have acted perfectly in a way to avoid injury to herself, but she acted in a reasonable fashion. She did not have the benefit of a warning sign or some other motorist (such as the driver of the utility ahead of her) turning on his or her hazard lights; as Mr Spratt had considerately acted for the benefit of road users coming up behind him. She had to act in circumstances of an emergency. If anything, she might be commended for putting herself at serious risk of personal injury by swerving off the road, to avoid causing person injury to the driver (and/or other occupants) of the utility ahead of her. Further, this is not really a case of her failing to keep a proper lookout. It did not really matter whether the distance of the utility, from the point where she rounded the bend, was 30 or 50m. If any deduction was to be made at all for contributory negligence, it should be 10%.

Consideration

1. In Astley v Austrust Ltd (1999) 197 CLR 1, the plurality observed (at [21]) that contributory negligence consists of a plaintiff's failure to take reasonable care for the protection of his or her own person (or property). Further, contributory negligence may arise even where the plaintiff's negligence did not contribute to the accident which caused the injury.
2. Under the general law, it was well-established that apportionment would be based upon the assessment of the relative culpability of the parties - that is, the degree to which their conduct departed from the standard of care of a reasonable person (measured, now, by ss 5B(2) and 5C, in conjunction with s 5R) and the relative importance of their roles in causing the damage [32] .
3. In the category of motor accident case where a motorist strikes a pedestrian, almost inevitably, the motorist's responsibility would be treated as more significant than a pedestrian's failure to keep a lookout; because of the former's potential to do great harm [33] . But the circumstances of this case are far removed from that category of case; or the other common category of case where a defendant vehicle collides with a vehicle that a plaintiff was driving.
4. In Manley v Alexander (2005) 80 ALJR 413, the High Court said (at [11]) that: "Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path".
5. Also, whilst it may be accepted in some instances, circumstances may arise requiring split-second decision-making, it may be negligent if by reason of failing to keep a proper lookout, the motorist deprives herself of the ability to make decisions other than the immediate reaction of slamming on the brakes (Evans v Lindsay (2006) 46 MVR 531; [2006] NSWCA 354 per Beazley JA at [71]).
6. I agree with Senior Counsel for the defendant's submission that it is not proof of safe driving that the plaintiff happened to drive under the speed limit. Appropriately, the plaintiff reduced her speed to deal with the wet road and the rain. The problem was that she did not adjust her speed sufficiently when rounding the bend in the road, when she first sighted the stationary traffic, in time to avoid the desperate and terrible choice she was confronted with. I also accept that it is a basic road rule [34] that a driver is to keep such sufficient distance behind a vehicle travelling in front so that the driver can, if necessary, stop safely to avoid collision with the car. In accordance with the guidance of this rule, a reasonable person in the plaintiff's position would not, have been forced to go around (either side of) the driver in front of him or her but instead would have adjusted his or her speed sufficiently so that could come to a complete stop. That this did not occur was the result of the plaintiff failing to keep a proper lookout. In doing so, she did not exercise reasonable care for her own safety.
7. It is true, as Senior Counsel for the plaintiff argued, that the standard of driving to be expected of her was that it only be 'reasonable' in the light of a hazard in front of her and that her conduct had to be viewed in the light that (on the stated premise) she was placed in an emergency caused by the insured's breach of duty to her and had to respond to the agony of the moment. But drivers, for manifold reasons, are reasonably to be expected to deal with unexpected contingencies; and the circumstance that her view as to what lay beyond the bend was obscured was an occasion for greater care and vigilance than if the stretch of the road was entirely straight. It was not suggested that the plaintiff's accident was practically unavoidable, say, because it occurred much closer to the end of the bend that the plaintiff came around. As the defendant submitted, whilst acknowledging that he was an experienced user of this particular road, and noting what may have been a greater level of skill in his driving ability (he being an RFS driver) than the plaintiff, Mr Spratt was able to stop his car.
8. It is, also true, as Mr Higgs SC submitted that the relevant comparison, as to culpability, was with the insured's negligence. The defendant adduced no evidence to put the insured's crossing onto the wrong side of road in any light that would mitigate against the natural inference that such conduct was grossly negligent.
9. If the matter was decided by the consideration of comparable culpability alone, then responsibility would strongly attach to the insured.
10. But on the score of causative contribution, the plaintiff had the far superior means of avoiding the damage to herself and to assess the conditions she was faced with. I accept the defendant's submission that at the speed at which she was travelling and at the distance she was behind the utility, she had enough time to bring her car to a halt. The insured's causal contribution was, as I have said, essentially historical, and not proximate. It was the plaintiff's own conduct that overwhelmingly contributed to her injuries.
11. I would have found that the plaintiff's damages should be reduced by 65% on account of contributory negligence.

ORDERS

1. Whilst the Court sympathises with the plaintiff for the injuries she sustained, she has not brought her case within s 3A of the MAC Act; without which she cannot succeed in a claim for damages against the defendant. Further, even if she had, she would not have established her action in negligence against the insured.
2. I make the following orders: 1. Judgment for the defendant. 2. The plaintiff is to pay the defendant's costs of the proceeding, as agreed or assessed. 3. Exhibits are to be returned within 28 days.

Endnotes

1. No hearsay objection was taken to this document.
2. No objection was taken to this part of the document, as being hearsay (see s 69(5) of the Evidence Act 1995 (NSW) or opinion (s 78(a)). As to the application of either basis for objection see Lithgow City Council v Jackson (2011) 244 CLR 352
3. Senior Counsel for the defendant referred to the expression identified in American law of 'overdriving the headlights'.
4. RG & KM Whitehead Pty Ltd v Lowe (2013) 63 MVR 375; [2013] NSWCA 117; Scott v Williamson (2013) 63 MVR 396; [2013] NSWCA 124; Bayon v Bayon (2014) 69 MVR 360; [2014] NSWCA 434; Allianz Australia Insurance Ltd v Gonzales (2013) 65 MVR 286; [2013] NSWSC 362
5. Paul v Cooke (2013) 85 NSWLR 167 per Leeming JA at [53]-[57]
6. Explanatory note to the Motor Accidents Compensation Amendment Bill 2010
7. See also the Second Reading speech by Parliamentary Secretary, the Hon. Michael Veitch.
8. Carr v Western Australia (2007) 232 CLR 138 at [5] (approved in CFMEU v Mammoet Australia Pty Ltd (2013) 248 CLR 619 at [40])
9. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382
10. South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513 per Leeming JA at [78]-[82]
11. Australian Concise Dictionary, 2nd ed
12. Macquarie Dictionary, online ed
13. Oxford English Dictionary, online ed
14. D. Pearce & R Geddes, Statutory Interpretation in Australia (8th ed, 2014, Lexis Nexis) [3.36]; P Herzfeld & T Prince, Interpretation (2nd ed, 2019, Thomson Reuters) [8.280]-[8.290]
15. Federal Commissioner of Taxation v ICI Australia Ltd (1972) 127 CLR 529 per Walsh J at 541-2
16. Chapman v Hearse (1961) 106 CLR 112
17. [1932] AC 562 at 580-581
18. This was described as a "well-settled duty" by Beazley P (McColl JA and Ward JA both generally agreeing) in Waller v James (2015) 90 NSWLR 634 at [98] ('Waller').
19. C Sappideen & P Vines (eds), Fleming's The Law of Torts (10th ed, 2011), [8.10] pp 151-152. This point was also referred to in Sullivan v Moody (2001) 207 CLR 562 ("Sullivan") at [42]
20. Sullivan at [50]
21. A M Gleeson, "Donoghue v Stevenson" in H Dillon (ed) Advocacy and Judging: Selected Papers of Murray Gleeson, (2017, The Federation Press), supra, p 29
22. For example, Jaensch v Coffey (1984) 155 CLR 549 per Deane J at 581
23. King v Phillips [1953] 1 QB 429 per Lord Denning at 439
24. Fleming on Torts, supra [8.40] pp 160-161 cited with approval in Seltsam Pty Ltd v McNeill (2006) 4 DDCR 1; [2006] NSWCA 158 per Handley JA at [3]-[4]. Handley JA's observations (and references to Palsgraf and Bourhill) were, in turn, approved in McKenna v Hunter & New England Local Health District (2013) Aust Torts Rep 82-158; [2013] NSWCA 476 per Macfarlan JA (Beazley P agreeing) at [98], Australian Securities and Investments Commission v Cassimatis (No. 8) (2016) 336 ALR 209 per Edelman J at [451] and by Edelman J again (albeit dissenting in the outcome) in Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428 at [151]
25. (1984) 155 CLR 549 at 607-8
26. eg as to the emphasis of a temporal connection and (implicitly) geographical connection, see Tabet v Gett (2010) 240 CLR 537 per Kiefel J (as her Honour then was) (Hayne, Heydon, Crennan and Bell JJ agreeing) at [109] citing with approval Brunsden v Humphrey (1884) 14 QBD 141 at 150.
27. eg Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515
28. See also Shoalhaven City Council v Pender (2016) Aust Torts Reports ¶82-319; [2016] NSWCA 210 per McColl JA at [62]
29. D. Villa, Annotated Civil Liability Act 2002 (NSW) (3rd ed, 2018, Thomson Reuters) [1A.5B.080], p 117
30. Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522
31. Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at [54].
32. Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529
33. Anikin v Sierra (2004) 79 ALJR 452
34. Road Rules 2014 (NSW) r 126. The circumstance that conduct is proscribed by a road rule may evince an absence of reasonable care, but it is not negligence per se; Verryt v Schoupp (2015) 70 MVR 484; [2015] NSWCA 128 per Meagher JA (Gleeson JA and Sackville AJA agreeing) at [4]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 August 2021