Collins v Insurance Australia Ltd

ailway Co (1928) 162 NE 99 Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36 Prouten v Chapman [2021] NSWCA 207 Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42 South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69 Stojan v Kenway [2009] NSWCA 364 Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 Sutherland Shire Council v Heyman (1985) 157 CLR 424; [1985] HCA 41 Sydney Water Corporation v Turano (2009) 239 CLR 51; [2009] HCA 42 Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited (2022) 399 ALR 535; [2022] HCA 11 Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 Waller v James (2015) 90 NSWLR 634; [2015] NSWCA 232 Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; [2004] HCA 16 Zotti v Australian Associated Motor Insurers Ltd [2009] NSWCA 323; 54 MVR 111 Texts Cited: Explanatory Memorandum, Motor Accidents Compensation Amendment Bill 2010 NSW NSW Legislative Council, Parliamentary Debates (Hansard), 9 November 2010, p 27261 Hon Justice Roger Giles, "Duty of Care, Scope and Breach" (2009) 9 The Judicial Review 165 Category: Principal judgment Parties: Lisa Collins (Appellant) Insurance Australia Ltd (Respondent) Representation: Counsel: Mr D Higgs SC / Mr J Wilson (Appellant) Mr A J Stone SC / Ms O J Dinkha (Respondent)

Solicitors: Stacks Law Firm (Appellant) McCabes (Respondent) File Number(s): 2021/00238528 Publication restriction: Nil Decision under appeal Court or tribunal: District Court Jurisdiction: Civil Citation: [2021] NSWDC 371 Date of Decision: 2 August 2021 Before: Abadee DCJ File Number(s): 2017/00200886

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] 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 near Monga, south-east of Canberra, and collided with another vehicle. At about 2pm, Lisa Collins was driving west on the Kings Highway, approximately 1km to 2km 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. She suffered 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, pursuant to s 113(1) of the Motor Accidents Compensation Act 1999 (NSW). On 2 August 2021, Abadee DCJ 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 s 3A(1)(d) of the Motor Accidents Compensation Act. Ms Collins appealed. On appeal, the issues were whether: (1) the primary judge erred in finding that Ms Collins was 50-65m 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, and (5) Ms Collins was contributorily negligent. Held by Basten AJA (Meagher and Kirk JJA agreeing), allowing the appeal: Issue 1 - distance of vehicle per Basten AJA (Meagher and Kirk JJA agreeing): (1) The primary judge did not err in finding that Ms Collins was 50-65m away from the rear-most vehicle when she first saw the queue of stationary vehicles: [67]. Issue 2 - "dangerous situation" per Basten AJA (Meagher and Kirk JJA agreeing): (2) The heavy traffic resulting from the original collision was a "situation" within s 3A(1)(d) of the Motor Accidents Compensation Act. The situation was caused by the insured driver colliding with another vehicle: [105]. (3) Whether a situation is "dangerous" must be determined prospectively by reference to the state of affairs immediately prior to the injury. Having regard to purpose of legislation "dangerous" should be given its ordinary meaning: [98], [106]. Chapman v Hearse (1961) 106 CLR 112; [1961] HCA 46; Zotti v Australian Associated Motor Insurers Ltd [2009] NSWCA 323; 54 MVR 111; Allianz Australia Insurance Ltd v GSF Australia Ltd (2005) 221 CLR 568; [2005] HCA 26; Kimber v Chief Executive, Department of Treasury and Finance, for Chief Executive, Department for Health and Wellbeing (SA Ambulance Service) [2021] SASCA 133, referred to. Motor Accidents Compensation Act 1999 (NSW), ss 5, 6; Motor Accidents Amendment Act 1995 (NSW); Motor Accidents Compensation Amendment Act 2006 (NSW); Motor Accidents Compensation Amendment Act 2010 (NSW), considered. (4) There was a "dangerous situation" because (i) a queue of stationary vehicles were not visible to a driver until within 50-65m; (ii) the existence of the queue could not have been anticipated by reasonable drivers taking care for their safety; (iii) it was not necessary for a driver to drive at less 60 km/h where the speed limit was 90 km/h and there was no sign advising a lower speed limit and (iv) a car driving at 60 km/h could not stop in time without difficulty: [106]-[109]. Issue 3 - duty of care per Basten AJA (Meagher JA agreeing): (5) The insured driver owed a duty of care to the plaintiff. A negligent driver who causes a collision on a regional highway creates a risk of injury to other road users who were not involved in the initial collision. The dangerousness of the situation was not a function of time or geography: [122], [130]. Chapman v Hearse (1961) 106 CLR 112; [1961] HCA 46; Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42, referred to. per Kirk JA: (6) The duty of a motorist to other road users is well established. The issue here was whether the distance in time and space between the insured driver's collision and the appellant's accident was such as to take the appellant outside of the class of road users to whom the duty was owed. It did not. The consequences of the original collision were still in play. The appellant suffered physical injury, being a risk of harm of a kind that was certainly reasonably foreseeable, and which the insured driver should have had in contemplation. It was a risk of harm of a kind for which the duty of a driver has been held to extend in other cases. The insured driver created a dangerous situation by putting an obstacle in the path of subsequent vehicles. Motorists in the position of the appellant were vulnerable to a meaningful extent: [12]-[16], [23], [25]-[26], [29]-[30]. Sutherland Shire Council v Heyman (1985) 157 CLR 424; Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62; Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59; Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258; Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; [2004] HCA 16, referred to. Issue 4 - breach of duty per Basten AJA (Meagher JA agreeing): (7) The foreseeability and materiality of the risk must be assessed from the time of the original collision, not by reference to the precise circumstances in which it materialised. The seriousness of the possible consequences is relevant to determining whether a reasonable person would have taken precautions. The consequential risks arising from a collision on a two-lane highway were foreseeable and not insignificant. A reasonable person in the insured driver's position would have taken precautions to avoid the collision: [134]-[137]. per Kirk JA: (8) Breach must be assessed prospectively. The trial judge erroneously focused on the precise mechanism by which harm in fact occurred. Whether there was a geographic connection between the two accidents was irrelevant to the likelihood of the foreseeable risk of harm eventuating. A risk may be characterised as "not insignificant" even where it has a "low" chance of occurring. A reasonable person in the insured driver's position would have taken precautions to avoid causing the not insignificant risk of physical harm to other road users: [38]-[41]. Issue 5 - contributory negligence Per Basten AJA (Meagher and Kirk JJA agreeing): (9) The driver of the rear-most vehicle in the queue and the vehicle behind the plaintiff were able to avoid a collision and injury. The plaintiff was 20% contributorily negligent: [145].

Judgment

1. MEAGHER JA: I agree with Basten AJA.
2. KIRK JA: Five issues arise in this appeal: (1) factual issues relating to the circumstances of the appellant's accident, raised by grounds 1-4 of the notice of appeal; (2) the application of s 3A of the Motor Accident Compensation Act 1999 (NSW) (MAC Act), raised by grounds 5-6; (3) the existence and scope of a duty of care (ground 7); (4) breach of any duty of care (ground 8); and (5) contributory negligence (grounds 9-10).
3. I have had the benefit of reading the judgment of Basten AJA in draft. I agree with the orders his Honour proposes. I also agree with his Honour's reasons on the first, second and fifth issues. On the third and fourth issues - duty and breach - my reasons are below. The facts are set out by Basten AJA, and I will not repeat them except to the extent necessary.

Duty of care

1. The question of whether or not the insured driver here owed the appellant a duty of care does not depend upon, and is not affected by, the application of s 3A of the MAC Act. That section relevantly determines whether or not the compulsory third party insurance policy responds to the accident at the centre of this case. That is a separate inquiry to whether or not there was a common law duty of care, as the trial judge correctly recognised at [74] and [81]. That being said, the facts that establish that the driving of the insured driver created a "dangerous situation" for the purposes of s 3A also militate in favour of the existence of a duty of care.
2. There was no dispute in this case that the insured driver owed a duty of care to other road users, and that he had breached that duty in the original collision which caused the blockage of the highway. In particular, the insured driver breached his duty to the occupants of the other vehicle with which his car collided.
3. The trial judge identified the issue that arose as regards the appellant as follows (at [75], citation omitted): "It could hardly be denied that a motorist owes a duty of care to other road users. 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?"
4. His Honour regarded this as an issue going to the "scope" of the duty of care, having recognised at footnote 18 that the duty of a motorist to other users has been described as a "well-settled duty", citing Waller v James (2015) 90 NSWLR 634; [2015] NSWCA 232 at [98] per Beazley P (McColl and Ward JJA both generally agreeing); see further eg Imbree v McNeilly (2008) 236 CLR 510; [2008] HCA 40 at [49], and cases there cited. Both parties agreed on appeal with that characterisation of the point at issue.
5. In Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [22] French CJ and Gummow J stated that cases that involve, inter alia, "the duty of a motorist towards other users of the road … ordinarily involve no real controversy over the scope and content of the duty of care" (footnotes omitted). That statement carries within it a recognition that some, no doubt rare, cases involving other road users may raise such questions.

Breach of the duty

1. Where the Civil Liability Act applies, as it did here, assessment of breach of a duty of care is to be undertaken by applying ss 5B and 5C of that Act. Section 5B(1) provides as follows: 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless - (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
2. Section 5B(2) sets out matters a court is to consider in determining whether a reasonable person would have taken precautions against the risk of harm.
3. The trial judge found that breach of duty was not established on the facts here because the s 5B(1)(b) criterion was not satisfied - that is, his Honour was not persuaded that "the risk was not insignificant". He had characterised the risk in question as being 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": at [104]. Neither side suggested some other characterisation of the risk. It may be accepted as sufficient for current purposes, although there is reason to think that it was overly particular.
4. His Honour's reasons for finding that the risk did not meet the "not insignificant" requirement were captured at [111]: "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."

Grounds 1 to 4 - distance of visibility

1. Three witnesses gave evidence as to the circumstances in which the appellant's accident occurred. The appellant herself gave evidence, although in terms which were not consistent with her statement to police made some six days after the accident, when she had been discharged from Canberra Hospital and returned to her home in Crookwell. A note of the answers she gave to questions by the officers were recorded in a police notebook and transferred to the computerised police records known as "COPS".
2. In her statement, the appellant described the driving conditions as "very, very wet", noting that it was raining and there was "water all over the road". She stated that the speed limit in the area was 80km/h (although it was in fact 90km/h) and she said, "I think I was doing about 60". She continued: "I came around a bend and saw a line of traffic stopped in front of me. There was a ute last in the line, it was about 50 metres in front of me. I applied my brakes and tried to stop, due to the wet road the car skidded, I didn't want to hit the other cars, so I swerved to the left to avoid them. It all happened so quick, I hit the embankment and I must have rolled, then it landed back on its wheels and stopped."
3. In her evidence at trial, she was asked to estimate how far away the stationary vehicle was when she came around the bend and said "probably 20 metres in front of me". [4] In relation to her speed the appellant stated: "I was only sitting on about 60, 65 all the way sort of thing because it was very, very wet, and I have a small car, it kept sort of moving on the road because of the water on the road". [5]
4. In cross-examination counsel noted that in her statement to police she had said that the utility was "50 metres away rather than 20 metres away", to which she responded that she was not good with measurements. When pressed she said: [6] "I don't know whether I said 50 or 15 to him, I can't sort of recall that. Whether I actually said 50 or 15 to him."
5. The second witness, Senior Constable Mortimer, prepared a statement at 7.14pm on the evening of the accident. The COPS report recorded that Senior Constable Mortimer attended at 2.10pm and left at 3.24pm. The report identified the accident as occurring at about 2pm, when the appellant was travelling in a westerly direction along the Kings Highway, Monga. The report continued: "An accident occurred earlier and both the east bound and west bound traffic were stopped due to the road being blocked and emergency services were in attendance. As the driver rounded a bend with a slight crest the accused was confronted with traffic stopped. The driver has swerved causing her to leave the shoulder of the road and hit the embankment causing the vehicle to flip a number of times."

Grounds 5, 6: Engagement of Motor Accidents Compensation Act

1. It is convenient to turn next to the basis upon which the appellant's claim was dismissed, namely that, because the claim was brought against the compulsory third-party insurer of the vehicle responsible for the original accident, the claim depended upon the application of the Motor Accidents Compensation Act. The application of the Act relevantly turned upon s 3A(1), which provides: 3A General restrictions on application of Act (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.
2. The critical provision for present purposes was par (d). It was assumed that pars (a)-(c) applied only where the injury was a result of, and caused during, the driving of the vehicle which caused the first accident. It was further assumed that the injury to the appellant did not occur "during… a collision… with the vehicle". Whether or not that assumption was valid, there can be little doubt that the appellant's claim was properly pursued as being an injury resulting from a continuing dangerous situation which had been caused by the insured driver.
3. The trial judge gave careful consideration to the history of this provision and its introduction into the Motor Accidents Compensation Act in 2010. The discussion focused upon the meaning of the adjective "dangerous" as used to describe the situation attracting the operation of the Act. The judge concluded: "61 … The textual construction I favour is in order for the [Motor Accidents Compensation 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."
4. The appellant took issue with this test, suggesting that it should have been sufficient if the risk were a "not insignificant" risk of personal injury. That approach conformed to the nature of the risk which was necessary to engage a breach of duty pursuant to s 5B(1)(b) of the Civil Liability Act 2002 (NSW).

Legislative history

1. The "rescuer" cases provide an example of indirect liability for the consequences of negligent driving. In Chapman v Hearse [16] the High Court considered the liability of the negligent driver, who caused an accident, to a medical practitioner, who came to the aid of a person who had been thrown from his vehicle onto the highway. A third vehicle hit and killed the medical practitioner (Dr Cherry). The High Court held that the original at-fault driver was one of those responsible for the death of Dr Cherry. The Court stated: [17] "What is important to consider is whether a reasonable man might foresee, as the consequence of such a collision, the attendance on the roadway, at some risk to themselves, of persons fulfilling a moral and social duty to render aid to those incapacitated or otherwise injured. … Whether characterisation after the event of its consequences as 'reasonable and probable' precisely marks the full range of consequences which, before the event, were 'reasonably foreseeable' may be, and no doubt will continue to be, the subject of much debate. But one thing is certain and that is that in order to establish the prior existence of a duty of care with respect to a plaintiff subsequently injured as the result of a sequence of events following a defendant's carelessness it is not necessary for the plaintiff to show that the precise manner in which his injuries were sustained was reasonably foreseeable; it is sufficient if it appears that injury to a class of persons of which he was one might reasonably have been foreseen as a consequence."
2. If it were necessary to consider the operation of s 3A in circumstances similar to those in Chapman v Hearse there might be a question as to whether the death of Dr Cherry occurred "during" the collision, in circumstances where the immediate consequences of the collision were still working themselves out. It is clear, however, that the negligent driving of Mr Chapman had created a dangerous situation which was ongoing whilst the vehicles and injured persons remained on the roadway, and which resulted in a third car arriving on the scene and hitting Dr Cherry.
3. The immediate trigger for the amendment to what is now s 3A(1) was the decision of a five-judge bench of this Court in Zotti v Australian Associated Motor Insurers Ltd. [18] The principal judgment was delivered by Spigelman CJ (Allsop P, with additional reasons, and McColl JA agreeing); Hodgson JA and Campbell JA wrote separately but to similar effect. Mr Zotti, riding a bicycle, arrived at an intersection some two hours after a motor vehicle collision. A patch of oil had been deposited on the road in the course of the collision and, although the cars involved had been towed away and police and the fire brigade had attended and cleaned up the roadway, some oil was left on the roadway. [19] Mr Zotti lost control of his bicycle on the oil patch and suffered injury. The question for the Court was whether he was entitled to recover from the insurer of the negligent driver. Section 3 of the Motor Accidents Compensation Act then contained the relevant definition of "injury" which included conditions equivalent to pars (a), (b) and (c) of the current s 3A. The question was whether the injury to Mr Zotti was "caused during a collision". This Court held that it was not, applying statements by the High Court in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd. [20]

Reasoning of the trial judge

1. The trial judge properly had regard to the legislative history; in particular, he set out much (but not all) of the passage from the second reading speech quoted above.
2. The trial judge appropriately adopted a purposive of approach to the construction of s 3A(1). Not only does the Interpretation Act 1987 (NSW), s 33, require a court to adopt a construction "that would promote the purpose or object underlying the Act" and prefer such a construction to one that "would not promote that purpose or object", but a similar requirement is repeated in s 6(1) of the Motor Accidents Compensation Act itself. The objects of the Act are set out in s 5(1): they include, "to provide compensation for compensable injuries sustained in motor accidents" (par (b)), "to promote competition in the setting of premiums for third-party policies" (par (c)), and "to keep premiums affordable, recognising that third-party bodily insurance is compulsory for all owners of motor vehicles registered in New South Wales" (par (d)). In particular, the object of keeping premiums affordable is to be achieved "by limiting the amount of compensation payable for non-economic loss in cases of relatively minor injuries, while preserving principles of full compensation for those with severe injuries involving ongoing impairment and disabilities".
3. There is no doubt that particular objectives are reflected in specific provisions, and that such provisions therefore may be construed having regard to the particular purpose or object. The judge recognised the difficulty in generalising such statements of purpose, as did Campbell JA in Zotti stating: "[111] …While one can readily accept that the CTP scheme is not intended to be a comprehensive accident compensation scheme providing substantial damages in all cases of injuries connected in some way to the use of a motor vehicle…, providing compensation for injuries sustained as a consequence of the negligent driving of a motor vehicle where the injuries are sustained by someone other than the negligent driver seems to be at the core of its purpose…. While it clearly needs to be recognised that an objective of both the 1995 amendments and the [Motor Accidents Compensation Act] is to keep premiums 'affordable', advancing that purpose in the construction of the Act does not require every provision in it to be construed in the way least favourable to providing cover."

Was the situation dangerous?

1. It is not in dispute that the circumstances whereby heavy traffic on a two-lane highway was backed up for perhaps more than a kilometre as a result of a collision between the vehicle driven by the insured driver and another vehicle constituted a "situation" for the purposes of s 3A(1)(d) of the Motor Accident Compensation Act. Further, it is not in dispute that the cause of the situation was the driving of the insured's vehicle and a collision of that vehicle with another vehicle. Finally, it was not in dispute that the situation continued to exist at the time that the appellant suffered injury in seeking to avoid a collision with the last vehicle in the queue. Accordingly, the accident giving rise to the injury occurred "during" the situation. There remains the single question as to whether the situation is properly described as "dangerous" within the meaning of s 3A(1)(d).
2. As the trial judge correctly observed, it would be incorrect to determine that the situation was dangerous because another road-user had been injured as a result of it. Rather, the proper approach is to consider, prospectively, whether, immediately prior to the appellant's injury, the situation was dangerous for persons approaching the stationary vehicles from the south-east. In my view, that description was satisfied on the basis of four characteristics. First, the queue of stationary vehicles was not visible to an approaching vehicle until that vehicle was within 50 or 60 metres of the end of the queue. The lack of visibility (accepted by the trial judge) appears to have been a function of a left-hand curve in the road immediately prior to the end of the queue and a slight rise or crest over which approaching vehicles would come.
3. Secondly, the existence of the queue was entirely unexpected. There was no basis for a reasonable road user taking care for his or her safety, to anticipate stationary vehicles at that point on the highway.
4. Thirdly, although the reasonable road user should adjust the speed of the vehicle to conform to the existing conditions, it was not a necessary precaution in the exercise of taking care for his or her safety for a road user to reduce his or her speed below 60km/h in circumstances where the permitted speed limit was 90km/h and there was no advisory sign indicating a lower speed should be adopted.
5. Fourthly, the situation was dangerous because a vehicle navigating the curve at about 60km/h and driven by a person keeping a proper lookout, would not be able to stop in less than about 54 metres, which was almost exactly the point at which the end of the queue became visible. Indeed, the practical distance required to stop may have been further, as it would have required a moment's observation to assess the situation and determine that the vehicle in front was indeed stationary.

Duty of care

1. The trial judge held that the insured driver did not owe the appellant a duty of care. He rejected the submission 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". [42]
2. The judge dealt with this issue by commencing with the following propositions: "75 It could hardly be denied that a motorist owes a duty of care to other road users. 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?" [Footnote omitted.]
3. With respect, these questions are not apposite. To ask where the appellant was at the time of the accident involving the insured driver, and what time had elapsed before her accident, is to divert attention from the real question. For example, in Chapman v Hearse, Dr Cherry was not on the main road on which the collision occurred when it occurred. He was at the time leaving a golf club from which there was access to the main road by a side road. Nor would it matter if a rescuer came across the aftermath of a collision in a remote location a significant time after the collision occurred. At least in the present case, the dangerousness of the situation created by the negligence of the insured driver was not a function of time or geography. Nor, in accordance with Chapman v Hearse, did the insured driver need to be able to foresee with precision, prospectively, the danger which was created; it was sufficient that the backup of traffic and the dangers which that may present to other road-users, including persons on the roadway, were a foreseeable consequence of an accident which blocked the highway.
4. It is, of course, possible that the accident occurred on an open stretch of straight road, so that the precise combination of stationary vehicles and a curve in the road obscuring the vehicles would not arise for some time. It was common ground, and even part of the respondent's case, that this was a busy highway taking holiday traffic between the coast and Canberra on a Sunday afternoon. The chance of a significant delay in clearing the road after an accident, with the concomitant expectation of a lengthy build-up of stationary vehicles, was all entirely foreseeable as the result of negligent driving causing a collision.

Breach of duty

1. Having identified the risk of a collision or injury in attempting to avoid a collision with stationary vehicles, the judge was satisfied that the risk was "foreseeable" for the purposes of s 5B(1)(a) of the Civil Liability Act. [46] However, he was not only not satisfied that the risk was "not insignificant", for the purposes of s 5B(1)(b), but found affirmatively that it was insignificant. [47]
2. This finding was not necessarily anomalous but invoked some fine distinctions. Levels of risk may need to be assigned a place on an ascending scale along the following path: no risk → foreseeable risk → insignificant risk → not insignificant risk → significant risk → … [certainty]. The burden of proof must also be factored in. Importantly, risk must be identified both in terms of time and place.
3. Perhaps because we no longer require juries to undertake the exercise of determining liability, the sophistication of the exercise has increased, not illogically, but to a point where the law and common sense part company. Undue distinctions and complexity should be avoided.
4. The error in the reasoning of the trial judge lay in the identification of the risk to be assessed. The negligent act of the insured driver was in failing to take care to avoid the original collision. That act breached a duty owed to other road-users. If that act caused a dangerous situation to arise, it was not necessary to insist on foresight of the precise manner or place at which the harm materialised. The risk must be assessed, both as to foreseeability and materiality, at the time of the original collision, not by reference to the precise circumstances in which it materialised. [48]
5. The trial judge also accepted that the assessment of whether a risk was "not insignificant" disregarded the severity of the possible harm. [49] Although it is not necessary to reach a final view on that matter, that approach may be doubted. Because the purpose of the assessment is to determine whether a reasonable person would have taken precautions which the defendant did not take, arguably the seriousness of the possible consequences should not be excluded.
6. The analysis of dangerousness at [65]-[69] above is undertaken on a different basis and for a different purpose. However, it describes risks in a class (consequential risks) arising in circumstances where a collision on a two-lane highway may readily be expected to block traffic for a significant period, creating a range of significant risks for other road-users which were concededly foreseeable (the trial judge so found). The consequential risks were not insignificant. (That conclusion involves a matter of evaluation which is not susceptible to more detailed explanation.)

Causation

1. The question of causation involves two issues, namely was the negligence of the insured driver a necessary condition of the occurrence of the harm and, secondly, was it appropriate for the scope of the negligent person's liability to extend to the harm so caused: Civil Liability Act, s 5D(1)(a) and (b). As the judge noted, factual causation under par (a) was conceded. [50] He then concluded that scope of liability was also satisfied. [51] There was no challenge to that finding.

Conclusion as to liability

1. It follows that the appellant must succeed on the question of liability.

Grounds 9, 10: Contributory negligence

1. As has been noted, the trial judge contingently assessed the defence of contributory negligence raised by the respondent, on the basis that his finding of no liability was in error. That conclusion must now be reconsidered afresh. It was based to a significant extent on a view as to the relationship between the insured driver and the appellant which was assumed to be wrong. It is not easy to assess relative culpability in such circumstances.
2. Little is known about the circumstances in which the original collision occurred. No issue is raised by the respondent to minimise the culpability of the driver. Given the fact that the Kings Highway on a Sunday afternoon was extremely busy, the importance of taking care to drive safely was, if anything, enhanced.
3. With respect to the appellant, the usual elements of any finding of contributory negligence must be assessed according to the standard which would apply were she the defendant: Civil Liability Act, s 5R(1). The respondent did not demonstrate that the appellant was driving at excessive speed, nor that she failed to keep a proper lookout. She had been driving for 30 minutes at the time of the accident and was presumably not overly tired. Nothing was identified in the course of submissions in this Court to suggest any specific basis upon which a want of reasonable care could be established. The judge concluded that the appellant failed to keep a proper lookout and therefore did not exercise reasonable care for her own safety. [52] The judge also accepted that her response had to be "viewed in the light of a hazard in front of her" which placed her in an emergency and required her to respond in "the agony of the moment". [53] The judge also accepted that the accident was not "practically unavoidable" because Mr Spratt had been able to avoid a collision.
4. The trial judge then stated that "[i]f the matter was decided by the consideration of comparable culpability alone, then responsibility would strongly attach to the insured". [54] However he continued: "136 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."

Orders

1. It follows that the judgment and orders of the District Court must be set aside. The appellant should have a judgment in her favour in an amount of $200,000 to take effect from 2 August 2021. If there is prejudgment interest to be included, that can be agreed between the parties and, if necessary, this judgment can be amended by consent. If there is no agreement, the parties will have the usual period of 14 days to seek a variation of the judgment.
2. The respondent must pay the appellant's costs in this Court and in the Court below.
3. The appropriate orders are as follows: (1) Set aside the judgment and orders 1 and 2 made in the District Court on 2 August 2021. (2) In place thereof, 1. Give judgment for the plaintiff against the defendant in an amount of $200,000. 2. Direct that the judgment take effect on 2 August 2021. 3. Order that the defendant pay the plaintiff's costs of the trial. (3) Order that the respondent pay the appellant's costs in this Court.

Endnotes

1. Collins v Insurance Australia Ltd [2021] NSWDC 371 ("Collins").
2. Collins at [137].
3. Collins at [6].
4. Tcpt, 20/7/21, p 43(40).
5. Tcpt, p 46(13).
6. Tcpt, p 56(50).
7. Tcpt, p 30(32).
8. Tcpt, p 30(40)-(48).
9. Tcpt, p 73(30).
10. Tcpt, p 73(40).
11. Tcpt, p 74(7)-(15).
12. Tcpt, pp 74(46)-75(18).
13. Collins at [33].
14. [2021] NSWCA 207 (Meagher and Leeming JJA).
15. Motor Accidents Compensation Amendment Act 2010 (NSW), Sch 1[3].
16. (1961) 106 CLR 112; [1961] HCA 46.
17. Chapman v Hearse, p 120.
18. [2009] NSWCA 323; 54 MVR 111.
19. Zotti at [7].
20. (2005) 221 CLR 568; [2005] HCA 26.
21. Allianz at [92].
22. Zotti at [63].
23. Zotti at [90].
24. Zotti at [92]-[93].
25. Zotti at [111].
26. Zotti at [111].
27. Zotti at [114].
28. NSW Legislative Council, Parliamentary Debates (Hansard), 9 November 2010, p 27261.
29. Ibid, p 27262.
30. Ibid p 27263.
31. Zotti at [46].
32. Referring to South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69 at [78]-[82] (Leeming JA).
33. Collins at [56].
34. Collins at [58].
35. [2021] SASCA 133 (Livesey P, Bleby and David JJA).
36. Kimber at [52].
37. (1994) 179 CLR 520 at 558-559 (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ); [1994] HCA 13.
38. Collins at [63]-[67].
39. 106 CLR 112 at 119, 122.
40. (1991) 171 CLR 506; [1991] HCA 12.
41. March at 519 (Toohey J agreeing generally at 524; Gaudron J agreeing at 525).
42. Collins at [71].
43. (2007) 234 CLR 330; [2007] HCA 42 at [43] (Gummow J, Heydon and Callinan JJ agreeing).
44. Dederer at [47].
45. Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36 at [11] (Gleeson CJ), [105], [125] (McHugh J), [151] (Gummow J), [286], [296] (Kirby J)