[2009] NSWCA 258
Chapman v Hearse (1961) 106 CLR 112
[1961] HCA 46
Czatyrko v Edith Cowan University (2005) 214 ALR 349
Source
Original judgment source is linked above.
Catchwords
(2018) Aust Torts Rep 82-402
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520[1994] HCA 13
Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649[2009] NSWCA 258
Chapman v Hearse (1961) 106 CLR 112[1961] HCA 46
Czatyrko v Edith Cowan University (2005) 214 ALR 349[2005] HCA 14
D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1[2005] HCA 12
Harriton v Stephens (2006) 226 CLR 52[2006] HCA 15
Imbree v McNeilly (2008) 236 CLR 510[2022] HCA 12
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361[2011] HCA 11
March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506[1991] HCA 12
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254[2000] HCA 61
Palsgraf v Long Island Railway 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
Judgment (19 paragraphs)
[1]
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)
[2]
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
[3]
[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.]
[4]
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].
[5]
Judgment
MEAGHER JA: I agree with Basten AJA.
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).
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.
[6]
Duty of care
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.
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.
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?"
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.
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.
[7]
Breach of the duty
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.
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.
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.
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."
[8]
Grounds 1 to 4 - distance of visibility
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".
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."
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]
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."
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."
[9]
Grounds 5, 6: Engagement of Motor Accidents Compensation Act
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.
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.
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."
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).
[10]
Legislative history
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."
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.
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]
[11]
Reasoning of the trial judge
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.
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".
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."
[12]
Was the situation dangerous?
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).
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.
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.
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.
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.
[13]
Duty of care
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]
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.]
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.
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.
[14]
Breach of duty
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]
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.
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.
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]
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.
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.)
[15]
Causation
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.
[16]
Conclusion as to liability
It follows that the appellant must succeed on the question of liability.
[17]
Grounds 9, 10: Contributory negligence
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.
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.
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.
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."
[18]
Orders
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.
The respondent must pay the appellant's costs in this Court and in the Court below.
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.
[19]
Endnotes
Collins v Insurance Australia Ltd [2021] NSWDC 371 ("Collins").
Collins at [137].
Collins at [6].
Tcpt, 20/7/21, p 43(40).
Tcpt, p 46(13).
Tcpt, p 56(50).
Tcpt, p 30(32).
Tcpt, p 30(40)-(48).
Tcpt, p 73(30).
Tcpt, p 73(40).
Tcpt, p 74(7)-(15).
Tcpt, pp 74(46)-75(18).
Collins at [33].
[2021] NSWCA 207 (Meagher and Leeming JJA).
Motor Accidents Compensation Amendment Act 2010 (NSW), Sch 1[3].
(1961) 106 CLR 112; [1961] HCA 46.
Chapman v Hearse, p 120.
[2009] NSWCA 323; 54 MVR 111.
Zotti at [7].
(2005) 221 CLR 568; [2005] HCA 26.
Allianz at [92].
Zotti at [63].
Zotti at [90].
Zotti at [92]-[93].
Zotti at [111].
Zotti at [111].
Zotti at [114].
NSW Legislative Council, Parliamentary Debates (Hansard), 9 November 2010, p 27261.
Ibid, p 27262.
Ibid p 27263.
Zotti at [46].
Referring to South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69 at [78]-[82] (Leeming JA).
Collins at [56].
Collins at [58].
[2021] SASCA 133 (Livesey P, Bleby and David JJA).
Kimber at [52].
(1994) 179 CLR 520 at 558-559 (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ); [1994] HCA 13.
Collins at [63]-[67].
106 CLR 112 at 119, 122.
(1991) 171 CLR 506; [1991] HCA 12.
March at 519 (Toohey J agreeing generally at 524; Gaudron J agreeing at 525).
Collins at [71].
(2007) 234 CLR 330; [2007] HCA 42 at [43] (Gummow J, Heydon and Callinan JJ agreeing).
What is meant by the notion of the "scope" or "content" of a duty of care? It is sometimes employed in legal argument in a way which overlaps with the issue of standard of care, as McHugh J noted in Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 at [29] (his Honour was in dissent in the result, but that does not undermine his illuminating discussion of principle at [20]-[30]). Common law duties of care require that reasonable care be taken to avoid the relevant risk of harm: Vairy at [25] per McHugh J; Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 (RTA v Dederer) at [43] per Gummow J. Standard of care is a label given to the issue of what reasonable care required on the facts of the case in order to avoid breaching the duty of care.
Setting aside the issue of standard of care, at least two types of issue can arise in relation to the scope or content of a duty of care. First, the notion may encompass what types of risks of harm are subject to the duty of care. A person owing a duty of care to another is not necessarily required to take reasonable care to avoid all risks of harm to that other person. Thus in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61 it was held that the duty of care owed by the owner-occupier of a shopping centre to persons lawfully on site did not extend to risks of physical injury from the criminal behaviour of third parties; see further, by way of illustration, Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 at [25] per curiam; Kozarov v Victoria (2022) 96 ALJR 405; [2022] HCA 12 at [104]-[105] per Edelman J.
Secondly, the notion can also encompass who - ie what person or class of person - is the object of the duty: note the Hon Justice Roger Giles, "Duty of Care, Scope and Breach" (2009) 9 The Judicial Review 165 at 167 and 170. That is the type of issue which arises here.
Where common law duties of care exist they are owed by one person to another particular person or to a particular class of persons. They are not owed generically to the world. The fact that a person owes a duty of care to one person or class of persons, and breaches that duty, does not of itself mean that they are also liable in negligence to any other person who suffers harm as a result: see eg Bourhill v Young [1943] AC 92; Palsgraf v Long Island Railway Co (1928) 162 NE 99 at 100.
As Brennan J stated in Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 487; [1985] HCA 41, "a postulated duty of care must be stated in reference to the kind of damage that a plaintiff has suffered and in reference to the plaintiff or a class of which the plaintiff is a member"; see similarly RTA v Dederer at [43]-[44] per Gummow J. Issues sometimes arise in determining whether a particular person is within the class of persons to whom a duty of care is owed. This is such a case.
As regards the established duty owed by motorists, in Vairy McHugh J said the following in the course of a general discussion of the nature of duties of care (at [26]):
"the duty owed by motorists to other users of the highway, for example, is expressed in terms of the duty to take reasonable care for the safety of other users of the highway having regard to all the circumstances of the case. The duty is not subdivided into categories such as a duty to keep a proper lookout or sound a warning or to keep a safe distance away from the car in front. In the particular circumstances of the case, failure to do one or more of these things may constitute a breach of the duty to take reasonable care. But they are not themselves legal duties for the purpose of the law of negligence."
The issue that arose here involves asking whether the appellant was one of the other users of the highway to whom the insured driver owed his duty of care as a motorist. The appellant was, in fact, a road user driving on the same road as the insured driver. The question raised below by the respondent, and addressed by the trial judge, is whether the geographic and temporal separation between the original collision and where the appellant suffered harm was such as to take her outside the class of road users to whom the duty was owed.
This is not a case involving a novel duty of care. However, factorial analysis may still be relevant in addressing the question at issue. In Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59, at [50], the High Court stated that "[d]ifferent classes of case give rise to different problems in determining the existence and nature or scope, of a duty of care". It is implicit in the passage that follows that the sorts of salient features or factors that are relevant to the existence of a duty of care may also be relevant to the scope or content of a duty. So much is also implicit in the oft-cited analysis of Allsop P in Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258 (Stavar) at [102]-[107]. It may be noted in passing that the sorts of considerations that inform the existence and scope of a duty overlap with, but are not coterminous with, the considerations which inform the normative aspect of causation, as encompassed by s 5D(1)(b) of the Civil Liability Act 2002 (NSW): see Wallace v Kam at [26] per curiam.
The trial judge considered that "[t]he only consideration in support of the plaintiff's case is foreseeability" (at [93]); that that was necessary but not sufficient even with respect to risks of physical injury; and that extending the motorist's duty to cover such a case as this was too tenuous given "there was an absence of both a geographic connection and a temporal connection" (at [94]). Although his Honour considered the matter thoughtfully, I respectfully disagree with this conclusion.
Starting with foreseeability, as the trial judge did, in D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12, at [101], McHugh J said 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". Here, the trial judge found that the risk of harm was foreseeable, but stated at [93] that "as the High Court held in Sydney Water Corporation, foreseeability, though necessary, is insufficient". What the High Court emphasised in Sydney Water Corporation v Turano (2009) 239 CLR 51; [2009] HCA 42 at [53] was the need for reasonable foreseeability.
In this case, reasonable foreseeability of a risk of harm to a person in the position of the appellant was not disputed. Indeed, the respondent argued in this Court that the "consequence of [the insured driver's] negligence, being a queue of stationary vehicles, was not an unusual occurrence for motorists using the highway at the time of the appellant's accident". That is not to dispute that reasonable foreseeability will generally not suffice by itself to establish a duty of care, as the High Court indicated in, for example, Sullivan v Moody at [42] and [49]. Nevertheless, in cases such as the present - involving a well-established duty relating to a risk of physical harm - not much more may be required in considering the scope of the class of persons to whom the duty is owed.
The appellant was a road user who suffered harm of a kind that is not uncommon in the circumstances: she suffered physical injury when she attempted to avoid colliding with a vehicle that had stopped in front of her. That vehicle had stopped as part of a line of traffic backed-up because of the collision caused by the insured driver. Although that is to look to what occurred after the insured driver breached any duty he owed, and duties are to be assessed prospectively, it is well-established that the type of harm suffered may throw some light on the existence and extent of the duty: eg Harriton v Stephens (2006) 226 CLR 52; [2006] HCA 15 at [225] per Crennan J.
Put another way, the conduct of the insured driver created a dangerous situation. So much is explained by Basten AJA in his analysis of the issue raised by s 3A of the MAC Act. As I have indicated, s 3A is not addressed to the issue of the existence and scope of a duty of care, but a finding that a dangerous situation was caused by the driver's driving of the vehicle is also relevant to the duty issue. The trial judge stated at [90] that the appellant "was not in a situation where the insured's negligent driving put her in danger of direct physical injury". I disagree. In addressing the issue of breach, the trial judge himself said at [107] 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)."
That finding illustrates that the type of dangerous situation that led to harm here should have been in the contemplation of the insured driver. So much is illustrated by cases such as Chapman v Hearse (1961) 106 CLR 112; [1961] HCA 46 and March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506; [1991] HCA 12, to which Basten AJA has referred below at [114]-[115]. Those cases support the inclusion of a person in the appellant's position in the class of person to whom the duty is owed.
The actions of the insured driver here created an entirely foreseeable obstacle - a traffic jam - in the path of other drivers using the highway. People driving on highways will typically travel at some speed (although here, in fact, it was not disputed that the appellant was only travelling at some 60 km/h when she saw the traffic banked up in front of her). The vehicles immediately behind both of the cars involved in the collision were put at risk from the sudden obstacle in their path. So, potentially, were the vehicles behind those, and so on down the line. Depending on the terrain, some drivers may have had a clear view of the obstacle in front of them. Others would not. Those who did not were put in danger.
A lack of temporal or geographic proximity can potentially be relevant to the existence or scope of a duty of care: note eg Stavar at [103(g)] per Allsop P and [170] per Basten JA. Senior counsel for the respondent gave an example of a truck driver negligently causing damage to a bridge such that a highway had to be diverted for an extended period onto a more dangerous route. He submitted that the driver's duty would not extend to the consequences of a subsequent accident two weeks later on the detour route which would not have occurred but for the original accident. It may well be that the driver's duty of care would not extend to taking reasonable care against the risk of occurrence of such harm. In any event, it is unlikely that the normative aspect of causation addressed by s 5D(1)(b) of the Civil Liability Act 2002 (NSW) would be made out in such a case.
Here, however, the insured driver's collision was very directly connected to the accident involving the appellant. The traffic had not moved since the original accident. The accident occurred a relatively short time after the original collision. The immediate consequences of that accident were still very much in play. It cannot be said that the appellant's accident was so distant from the original collision as to render her outside the class owed the duty of care.
It is possible to express this point in terms of vulnerability. To put obstacles in the path of people driving at some speed is to create a danger to which those other drivers are vulnerable. That may not be a situation of complete vulnerability, in the sense of other drivers being unable to protect themselves in any way. However, in this context vulnerability means the claimant's "inability to protect [themselves] from the consequences of a defendant's want of reasonable care, either entirely or at least in a way which would cast the consequences of loss on the defendant": Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; [2004] HCA 16 at [23] per Gleeson CJ, Gummow, Hayne and Heydon JJ. Here, other drivers were, to a meaningful degree, vulnerable to the consequences of the dangerous situation created by the insured driver.
Cases such as Chapman v Hearse and March v Stramare (E & MH) Pty Ltd illustrate that a duty of care is not necessarily excluded by the fact that the claimant may suffer harm in part because of their own carelessness or that of a third party. A person may owe a duty not to create a dangerous situation nonetheless: see further, eg, Czatyrko v Edith Cowan University (2005) 214 ALR 349; [2005] HCA 14 at [12] per curiam as regards employers; RTA v Dederer at [47] per Gummow J as regards roads authorities. Of course, the fact that others may act carelessly or dangerously can still be relevant to what is expected of the duty-holder in exercising reasonable care to avoid causing harm: note RTA v Dederer at [53]-[56] per Gummow J. And, self-evidently, it may sound in contributory negligence, as it does in this case.
The trial judge stated at [92] that "[a]n important concern of the law is to avoid the imposition of indeterminate liability". The respondent made a similar submission on appeal. No doubt indeterminacy can be a factor counting against the recognition of a duty of care at all, or against recognising a duty as extending to a distinct type of harm: note eg Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36 at [15], [32], [101]-[111], [202], [243], [329], [336]-[338], and [390]-[395]. But here there was no dispute that the insured driver owed a duty of care to other road users to avoid causing the type of harm which the appellant suffered.
In summary, the insured driver owed a duty of care to other road users, and the question is whether the appellant - a road user - should be regarded as being taken out of that class by reason of the geographic and temporal distance between the original collision and the appellant's accident.
The appellant's accident occurred at a time and place when the consequences of the original collision were in play. She 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. In these circumstances, the established duty of care owed by the insured driver as a motorist to avoid causing harm to other road users extended to the appellant.
Section 5B(1)(b) does not set a high threshold for what is a "not insignificant" risk. This Court reiterated in Bunnings Group Ltd v Giudice [2018] NSWCA 144; (2018) Aust Torts Rep 82-402 at [53] (per Leeming and White JJA and Emmett AJA) that the provision altered the law from the "undemanding" test at common law of the risk being real and not far-fetched or fanciful. The Court then added the following at [54]:
"The change has been said to impose a more demanding test, but 'not by very much': Shaw v Thomas [2010] NSWCA 169; (2010) Aust Torts Rep 82-065 at [44]. It is 'not particularly high': Sibraa v Brown [2012] NSWCA 328 at [49], Motorcycling Events Group Australia Pty Ltd v Kelly (2013) 86 NSWLR 55; [2013] NSWCA 361 at [153], Stenning v Sanig [2015] NSWCA 214 at [32]. It is 'not particularly demanding': Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 82 at [140]."
Similarly, in Prouten v Chapman [2021] NSWCA 207 at [24] Meagher and Leeming JJA stated that s 5B(1)(b) sets "a slightly more demanding standard than one that is far fetched or fanciful".
This "not particularly demanding" test was readily met here. The trial judge at [111] relied upon "much the same reasons" as he had given in concluding that the insured driver had not caused a "dangerous situation" for the purposes of s 3A(1)(d) of the MAC Act. As I consider that the respondent did cause a dangerous situation, I similarly reach a contrary view on this issue of the risk being not insignificant. Once again, cases such as Chapman v Hearse and March v Stramare (E & MH) Pty Ltd manifest the meaningful reality of risks of consequential harm from traffic obstructions.
The trial judge's reasoning at [111] focuses on "the facts as they apply to the position of this particular plaintiff", including that 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". That reasoning erroneously focuses on the precise mechanism of harm that in fact occurred. Breach of duty, in contrast to causation of harm, must be assessed prospectively, and the inquiry into breach "must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk": see eg Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 at [124] per Hayne J. Foresight is not required of the precise manner or character of the risk of harm: Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited (2022) 399 ALR 535; [2022] HCA 11 at [106]-[109] per Gordon, Edelman and Gleeson JJ, and authorities there cited.
The trial judge's reference at [111] to "the absence of geographic connection" between the two collisions was similarly a distraction. That factor may have some relevance to identifying the reach of the class of person to whom a duty of care, as I have addressed above. However - and taking account of his Honour's own characterisation of the risk of harm, which has no geographic element - it is difficult to see that the distance between the two accidents has any real relevance to the likelihood of the risk of the identified type of harm eventuating, assessed prospectively.
The risk of a secondary accident occurring as a consequence of the insured driver's collision, and the dangerous situation it created, may have been "low", as the trial judge indicated. But, taking account of the not particularly demanding nature of the requirement, a risk may have a low likelihood of occurrence but still be characterised as not insignificant. It is not necessary here to consider whether or not the insignificance of a risk is to be assessed only by reference to the probability of the risk occurring, without taking any account of the consequences if the risk does occur: cf Benic v State of New South Wales [2010] NSWSC 1039 at [101] per Garling J.
To then apply s 5B(1)(c) and (2), there could be no dispute that a reasonable person in the position of the insured driver would have taken precautions to avoid causing the risk of harm at issue here, as the respondent seemingly accepted below: note trial judgment at [112]. Those precautions are the same precautions he was required to take in order to avoid causing the original collision. The respondent admitted that the insured driver had breached his duty to the occupants of the car with which he collided: see at [100].
Breach of duty was made out here.
BASTEN AJA: At about 2pm on Sunday 17 August 2014, the appellant, Lisa Maree Collins, was driving northwest on the Kings Highway near Monga, having passed Clyde Mountain. She came around a bend in the road and was confronted with a line of stationary vehicles. In attempting to avoid a collision with the rear-most vehicle, she mounted the embankment on the left side of the road and her car overturned, but landed on its wheels.
The vehicles she sought to avoid were stationary because the highway had been blocked some 1 or 2kms ahead as a result of a collision which had occurred at some time between 1pm and 1.30pm. The driver of one vehicle, insured by the respondent, had crossed to the wrong side of the road. There was no doubt that he (referred to as "the insured driver") was at fault.
By the time Ms Collins commenced proceedings in the District Court, the insured driver was dead. Relying on the authority provided by s 113(1) of the Motor Accidents Compensation Act 1999 (NSW), she commenced proceedings against his compulsory third-party insurer, the respondent on the appeal. The respondent resisted the claim on a number of bases, including the contention that the policy, governed by the Motor Accidents Compensation Act, did not apply to her injury.
The trial took place in the District Court at Sydney on 20 and 21 July 2021. With admirable expedition, the trial judge, Abadee DCJ, delivered judgment on Monday, 2 August 2021. The proceedings were dismissed, primarily on the basis that the respondent was correct in asserting that the claim was not covered by the policy. [1]
Against the possibility that this finding was wrong, the judge considered other matters raised by the respondent by way of defence, including the contentions that (i) the insured driver did not owe a duty of care to the appellant, and (ii) if there were a duty owed, the risk of harm was insignificant and there was therefore no breach of duty. Further, if in fact the other elements of liability were established, the judge contingently assessed contributory negligence on the appellant's part at 65%. [2] The judge was not required to assess damages, the parties having agreed that, if liability were established, the appropriate award was $250,000. [3]
Pursuant to a notice of appeal filed on 1 November 2021, the appellant raised 10 grounds challenging findings of the trial judge. These may be summarised as follows.
Grounds 1-4 addressed a finding that, at the time the appellant rounded the bend and was able to observe the stationary vehicles in her lane, the rear of the last vehicle (a utility) was between 50 and 65 metres ahead of her. The appellant submitted that the judge should have accepted the evidence of Senior Constable Peter Mortimer who attended at the scene of the accident and paced out the distance, which he assessed to be about 30 metres.
A noteworthy feature of the evidence at trial was the imprecision with which most material matters were recounted. Thus, there was no precise evidence as to where the original accident occurred, nor the time at which it occurred, which was broadly estimated as between 1pm and 1:30pm. It was common ground that there was a long line of traffic heading northwest on the highway which, by the time of the appellant's accident, was between 1 and 2kms long. That evidence was given by Senior Constable Mortimer, who drove from the original accident to the scene of the appellant's accident. The appellant gave evidence that she swerved up the left embankment on the side of the road, fearing that she would otherwise collide with the stationary utility. She also gave evidence that the car rolled before settling beside the road on its wheels. However, whether it was still behind the utility or alongside it was unclear. If there were skid marks on the road, there was no evidence of them and they were not measured or reported upon. Although Senior Constable Mortimer gave evidence of the number of paces he had taken and his estimate of the distance from the point where the stationary vehicles became visible to the rear of the utility, he made no contemporary record of the distance. There was no accident report, beyond minimal facts recorded in the police records (to which reference will be made), and no attempt to reconstruct what had happened. The only expert evidence, tendered by consent, was a chart of the stopping distances for the "average family car", travelling at various speeds.
As it turned out, none of these circumstances was of great moment: the question of liability was capable of being determined despite the vagueness of the evidence. Accordingly, although the distance which is the subject of grounds 1-4 will be considered below, it will be concluded that the challenges in those grounds were largely immaterial and the finding of the trial judge should be upheld.
Grounds 5 and 6 concerned the engagement of the Motor Accident Compensation Act. Although there were five factual findings which were challenged by ground 6, again, these were of limited significance in relation to the legal issue which arose under s 3A(1) of the Act.
Grounds 7 and 8 challenged findings by the trial judge that the insured driver owed no duty of care to the appellant, and that, if he did, there was no breach of the duty, given its scope. If the appellant succeeds in overturning the finding that the Motor Accidents Compensation Act did not apply, she must also overturn these findings in order to establish liability on the part of the respondent.
Grounds 9 and 10 addressed the contingent assessment of contributory negligence. In circumstances where the culpability of the insured driver was not established, and there was no evidence as to how the first accident occurred, the contingent finding of contributory negligence was an exercise of comparative culpability undertaken in the abstract. It need only be revisited if the liability of the insured driver is established, and there is a finding that the Act applies with respect to the appellant's injury. In that event, it will be necessary to assess contributory negligence afresh, based on a new set of considerations.
The appellant was referred to as "the accused" because the police were then considering whether to lay charges. It was noted that a blood sample had been taken and that the results were awaited. The recommendation of Constable Mortimer was as follows:
"If there is no positive reading from the blood sample police will not be infringing the driver as there were extenuating circumstances surrounding the accident. These are just some of the reasons that include:
* blind bend and road crest where traffic was at a stand still meaning the driver had little to no time to react to a parked vehicle in front. If the driver had not of swerved further vehicles/people could have been seriously injured.
* no information to motorists that traffic stopped or accident had just occurred up ahead and to slow or caution ahead.
* medium/heavy rain, wet sealed road."
The report later recorded that the blood sample had returned with a negative result with respect to alcohol.
The police reports, including the appellant's statement, were admitted without objection. In evidence-in-chief, Senior Constable Mortimer was asked about attempts he made to ascertain "when it was on the bend that you would first have a view of traffic ahead". [7] He said, "I paced it out, it was not approximate. I paced it out and probably between 30 and 40 steps, you, you would not have a visual of the rear car from the highest point of that bend". He estimated the distance in metres as "about 30 metres". [8] There was no cross-examination in relation to that evidence.
The third witness was Grant Richard Spratt, who was the driver of the vehicle immediately behind the appellant. In evidence-in-chief he explained that he was following the appellant's car "for a few kilometres" the road being "all fairly bendy". [9] He estimated his speed at that time as between 70 and 80km/h. He agreed that he would slow down on bends and continued: [10]
"A I would slow down to those and on that particular bend, knowing that its camber wasn't very good, would've slowed down to probably between, I don't know 65 and 70, something like that. Certainly cautious on that particular bend.
Q When you were travelling along behind the plaintiff, particularly as you were approaching the bend. How far away, how far behind were you from her?
A I'd say probably 5 or 6 car lengths 40, 40 metres or so."
Mr Spratt then gave evidence as to events prior to seeing the stationary vehicles: [11]
"Q As you were approaching the bend, can you just tell us what you saw as Mrs Collins, there was a bend in the road that we understand was a long bend to the left. Is that right?
A Correct as far as my recollection goes, that's correct. As, as the car in front rounded the bend, everything seemed to be going alright. As I, I got to the apex of the bend where you could actually see around the corner, we saw that the car in front had started to veer off the road and that there was a blockage on the high, on the main road all the traffic had stopped. You know the 'oh my god' moment the road, the traffic stopped exactly at the corner."
He continued the description in the following terms: [12]
"A Yes as we came around the corner I, I saw two things were happening. One the traffic had stopped and the car immediately in front of us had left the road. It, it's veered up onto the left verge bank and then it spun around and started back down the bank. So I then had, I had two challenges in front of me. One was the car that's stopped on the road and one's this challenge of the car coming down the embankment. Both of which I was able to brake heavily and I guess with good tyres, anti-lock brakes, a newish car, I was able to pull up in time to avoid both of those vehicles. At which stage I backed back a little to get the car off the, off the bitumen part of the road and put the hazard flashes on which is when we got out at that distance.
Q Just going back, just before the bend. Are you able to say how fast the plaintiff was going, relative to your speed?
A No, no. It would be a similar speed. …
Q Are you able to tell us how far the cars that were stopped, the last car that was stopped on the roadway as you came around the bend. How far that was away from you when you first saw it?
A Probably 50, 50 to, 50 to 80 metres, something like that."
The trial judge found that it was 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". [13] In reaching that conclusion the judge stated that he took into account the likely speed given by the appellant, namely 60km/h, and Ex 1, which was the table of stopping distances for a family car being driven at various speeds. The combination of the perception-response time and the braking distance on a wet road at 60 km/h gave a stopping distance of 54 metres. On a dry road the stopping distance was 45 metres.
As the judge noted, those distances conformed to the estimate given by the appellant shortly after the accident when speaking to the police and with the estimate given by Mr Spratt. That finding was supported by the evidence and there was no error in reaching that conclusion. It is true that it discounted the unchallenged evidence of Senior Constable Mortimer, but that evidence had its own built-in uncertainties, including the possible failure of memory (he not having recorded his initial estimation), and uncertainty as to the correctness of the point from which he commenced to pace out the distance.
Grounds 1-4 should be rejected.
On one view, the difference between the test espoused by the trial judge and that proposed by the appellant was minor. However, it is clear that the judge did not see it that way. When discussing the issue of breach of duty and the requirement in s 5B(1)(b) of the Civil Liability Act, he stated:
"110 … 'Not insignificant' risk is quantitatively very different to 'significant' risk, a matter which was touched upon earlier in these reasons addressing the [Motor Accidents Compensation Act] issue."
Further, it is clear from the judge's reasoning with respect to the operation of the Motor Accidents Compensation Act that he placed a high value on the requirement of a significant risk of harm for the purposes of determining what was a dangerous situation. Thus, in reaching his conclusion as to the operation of s 3A(1)(d) of the Motor Accidents Compensation Act, the judge stated:
"67 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."
It thus appears that the trial judge considered that, unless a collision was, if not inevitable, at least "likely", the situation was not dangerous.
If it be correct that a "significant" risk of harm is one which is likely to materialise, it must be true that the standard is significantly more demanding than that of a "not insignificant" risk. As this Court recently noted in Prouten v Chapman: [14]
"24 The primary judge regarded the risk of harm as extremely low…. The question posed by s 5B(1)(b) is whether the risk 'was not insignificant'. That is a slightly more demanding standard than one that is far-fetched or fanciful: see the decisions collected in Bunnings Group Ltd v Giudice [2018] NSWCA 144 at [53]-[54]."
In Bunnings Group, the Court (Leeming and White JJA and Emmett AJA) stated:
"53 Prior to the Civil Liability Act, the question was whether that risk was a real one, as opposed to one that was far-fetched or fanciful. That was the undemanding test enunciated by the Privy Council in Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty Ltd [1967] 1 AC 617 at 643, confirmed by the High Court in Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12 and from which a majority of that Court declined to depart in New South Wales v Fahy (2007) 232 CLR 486; [2007] HCA 20 (at [79] and [127]-[128]; cf [225]-[227]). There is no doubt that s 5B(1)(b) altered the law of negligence from that undemanding test, despite a suggestion that it might not have done so in Roads and Traffic Authority v Refrigerated Roadways Pty Ltd (2009) 77 NSWLR 360; [2009] NSWCA 263 at [186]. The Ipp Report made it clear that a change was intended, and said this of it:
'The Panel favours the phrase "not insignificant". The effect of this change would be that a person could be held liable for failure to take precautions against a risk only if the risk was "not insignificant". The phrase "not insignificant" is intended to indicate a risk that is of a higher probability than is indicated by the phrase "not far-fetched or fanciful", but not so high as might be indicated by a phrase such as "a substantial risk". The choice of a double negative is deliberate. We do not intend the phrase to be a synonym for "significant". "Significant" is apt to indicate a higher degree of probability than we intend.'
54 The change has been said to impose a more demanding test, but 'not by very much': Shaw v Thomas [2010] NSWCA 169; (2010) Aust Torts Rep 82-065 at [44]. It is 'not particularly high': Sibraa v Brown [2012] NSWCA 328 at [49], Motorcycling Events Group Australia Pty Ltd v Kelly (2013) 86 NSWLR 55; [2013] NSWCA 361 at [153], Stenning v Sanig [2015] NSWCA 214 at [32]. It is 'not particularly demanding': Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 82 at [140]."
To choose between the standard adopted by the trial judge and that proposed by the appellant it would be necessary to identify some criterion within the text or context of s 3A(1) upon which to base the choice. That exercise was assayed by the trial judge, but the underlying reasoning, as will be noted shortly, is not persuasive. However, approaching the question of statutory construction as a matter of principle, the choice between the two approaches does not arise in the terms in which they have been articulated. First, as senior counsel for the respondent correctly submitted, s 3A is not concerned with identifying the scope of liability for negligence. Rather, its purpose is to identify the circumstances in which the Motor Accidents Compensation Act, and third-party policies under that Act, apply with respect to negligent driving of motor vehicles causing personal injury. It follows that there is no reason to construe its terms by reference to the circumstances which give rise to a need to take precautions against a risk of harm materialising.
Secondly, the text makes no reference to such criteria. Rather, it identifies the limited scope of the Act by reference to three criteria which must be satisfied with respect to the particular injury (or death), namely, (i) a causal link between the injury and the fault of the owner or driver of the vehicle; (ii) the fault arising in the use or operation of the vehicle, and (iii) a temporal requirement that the injury is caused "during" one of four specified circumstances.
It is the temporal requirement which was the focus of attention in the present case. Each of pars (a), (b) and (c) of s 3A(1) identify activities or events to which the injury is causally connected. In circumstances which will be noted shortly, it has been held that the temporal requirement in pars (a), (b) and (c) did not extend to an indirect causal link, where the injury did not occur in the course of one of the three activities or events. In particular, where the driving of the vehicle or a collision had given rise to a dangerous situation in which injury occurred to a third person, the Act (and the third-party policies) did not apply. It was to extend the operation of the Act (and the policies) to cover such a circumstance, that par (d) was added by way of amendment in 2010. [15] The extension was not identified by reference to an injury caused by the negligent driving of a vehicle, but by reference to certain "situations" which might be caused by the negligent driving. Those situations were required to be "dangerous" situations. No doubt the concept of danger involves a risk of harm which may or may not materialise, however, there is no reason to substitute for the statutory language a different standard involving a specific level of risk. Unless the legislative history suggests otherwise, neither the approach of the trial judge nor that of the appellant should be adopted.
Allianz was quite a different case factually. It involved a worker injured in manually seeking to move a container to the rear of a truck, on the directions of his employer, in circumstances where a mechanical unloading system had failed. The dispute was between the employer (and its workers' compensation insurer) and the compulsory third-party insurer of the truck. The employer conceded (and the Court accepted) that the injuries suffered by the worker were caused "by the fault of GSF in the use or operation of the vehicle". [21] The additional temporal criterion was then expressed in more emphatic terms than is now the case, namely that the Act applied "if and only if" the injury was a result of, and was caused during, the driving of the vehicle, or during such use or operation, by a defect in the vehicle.
In dealing with the temporal condition, the joint reasons of Gummow, Hayne and Heydon JJ stated:
"93 In argument, some suggestion was conveyed that the terms 'result' and 'cause' have different meanings and, in particular, that 'cause' narrows 'result'. That is not so. The drafting in this second part of par (a) of the definition seeks to accommodate two cumulative criteria and does so by telescoping them into a grammatical contortion.
94 One criterion is that the injury be sustained during certain events, including the driving of the vehicle or a collision with the vehicle or its running out of control. The other criterion is that the injury be sustained as a consequence of those events. The phrase 'a result of' is linked to the first or temporal criterion; the phrase 'is caused' is linked to the second criterion. For sub‑par (iv), the temporal criterion is that the injury be a result of the use or operation of the vehicle because it was sustained during that activity. The other criterion is that the injury be caused by a defect in the vehicle."
In Zotti, the critical criterion was not the driving of a vehicle or a defect in the vehicle but what was then par (ii), namely "a collision… with the vehicle". The Chief Justice stated:
"12 The applicant submitted that Allianz should be understood as a case concerned only with sub-par (iv) of the definition of 'injury', being the sub-paragraph which the injury there under consideration was said to fall. However, the judgment of the High Court cannot be so confined.
13 Nevertheless, the reasoning in Allianz does need to be adapted to, relevantly, sub-par (ii). As the first sentence of [94] in the judgment makes clear the relevant first criterion is: 'that the injury be sustained during … a collision with the vehicle … .' In the second last sentence of [94] this is referred to by their Honours as 'the temporal criterion'. The second criterion to which their Honours refer turns on the phrase 'as result of' which their Honours treat as equivalent to 'is caused' by, relevantly, 'a collision'."
The issue was whether the "collision" had ended. The Chief Justice then concluded:
"22 The present case turns on when a 'collision' ends. It can be accepted that the word 'collision' does not refer only to the point of impact. It may well be the case that, for as long as the vehicles which had collided remained in their post-collision positions, the 'collision' would still be in existence. Accordingly, any further incident that occurred by another vehicle running into either car would fall within the meaning of 'injury' and 'motor accident'.
23 The position with a remnant of oil slick is, however, further removed. Ms S Norton SC, who appeared for the applicant submitted that the 'collision' continues until the effects of the collision have been removed.
24 In my opinion, that submission should be rejected. After the cars have been removed it cannot be said that the 'collision' was still extant. Detritus such as oil is simply aftermath, not a continuation of the original event."
Hodgson JA was troubled by an example which bore some resemblance to the present case. He stated:
"54 Consider the following scenario. A collision occurs between two motor vehicles, as a result of the fault of the driver of one only of those vehicles. The 'innocent' vehicle comes to rest in a position on the road that is hazardous to other road users. Shortly after the accident, a third vehicle arrives and, without negligence of its driver, collides with the 'innocent' vehicle, injuring persons in the third vehicle.
…
57 It is unlikely that the legislature intended that injuries sustained in the way I have outlined would not be covered by the Act. However, there appear to be only two possible ways of avoiding that result:
(1) by giving a wide meaning to 'caused during'; or
(2) by giving a wide meaning to 'during a collision'.
58 As regards (1), it could be argued that the requirement that an injury be caused during the driving of the vehicle or during a collision with the vehicle is satisfied if the significant causative factors that in due course bring about the injury are established during the event in question, even though the actual sustaining of the injury is delayed beyond that event; and indeed, but for the authority referred to later, I would be inclined to accede to that argument."
However, Hodgson JA accepted that his preferred construction was inconsistent with Allianz and must be rejected. [22]
Campbell JA in Zotti provided a valuable history of the definition of "injury". He noted that, prior to amendments made in 1995, the Acts contained a definition of "motor accident" as meaning "an accident caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle which causes the death of or injury to a person". [23] There was no temporal constraint. The third-party policy at that time contained in Sch 1 of the Act used similar language. The new definition of "injury", including a temporal element, was inserted by the Motor Accidents Amendment Act 1995 (NSW), in terms identical to s 3 of the Motor Accidents Compensation Act. The Explanatory Memorandum to the Bill stated that the new definition was added, "in order to remove an overlap that exists between motor accident claims and workers' compensation claims". [24] Campbell JA favoured a reading of the language described as a "contortion" in Allianz as an hendiadys. [25] It would then be sufficient that there was a causal connection with an event having a temporal link to the use and operation of the vehicle, even though the injury itself was sustained after the event was completed. Campbell JA accepted that this reading was not tenable in the light of Allianz. [26]
Although the language of s 3A(1) differs from that addressed in Allianz, the new definition of "motor accident", which was added by the Motor Accidents Compensation Amendment Act 2006 (NSW), retained a condition that the "injury is a result of and is caused… during" the specified activities or events. Campbell JA concluded that the reasoning in Allianz would continue to apply. [27]
As the second reading speech for the Motor Accidents Compensation Amendment Bill 2010 noted, the bill had two purposes: the second was "to address a decision of the New South Wales Court of Appeal [Zotti]". [28]
In turning to the second purpose, the Parliamentary Secretary identified the facts of Zotti, noting that although Mr Zotti was not able to recover from the compulsory third-party insurer of the vehicle at fault, there remained the possibility that he "could seek to recover damages directly from the vehicle driver". [29] The second reading speech continued: [30]
"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.
Indeed the Court of Appeal also thought that this was an unsatisfactory situation deserving of consideration by the legislature.
The Government has heeded the Court's call and proposes to amend the definition of 'motor accident' in the Motor Accidents Compensation Act to extend the cover provided by the compulsory third party policy to explicitly include coverage of incidents and accidents that occur as a result of a dangerous situation caused by the driving of a motor vehicle, a collision, action taken to avoid a collision or any vehicle running out of control.
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 purpose of the motor accidents scheme.
This is an important amendment. 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 their compulsory third party policy is always consistent with the driver's liability.
It will remove any possibility of a motorist having to meet, from their 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. Advice from the Motor Accidents Authority indicates that any effect on Green Slip premium cost should be minimal.
It is 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 that currently some other party, such as a road authority or property owner, has responsibility for."
Allsop P also identified the relevant provision as "fulfilling the evident policy of reducing the scope of the insurance cover under the Act", but preferred a construction which would not give rise to capricious or arbitrary results. [31] He continued:
"46 … As this very case shows, if the actual injury must be sustained or suffered during the events or occurrences set out in (i)-(iv) persons can be left without effective insurance cover in circumstances where the injury constitutes the direct sequelae of the accident and the cause of the injury occurred during, and was immediately bound up with, the motor vehicle accident. On an ordinary appreciation of events, an injury can be seen to be caused by a motor vehicle accident if the relevant causal link occurred during the collision (or other event or occurrence in (i)-(iv))."
The trial judge referred to potentially competing or conflicting objects, including the control of premiums. He concluded:
"51 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. 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." [Footnote omitted.]
Perhaps more accurately stated, the purpose of s 3A is to impose constraints on the circumstances in which compulsory third-party policies will respond to injuries that occur in motor vehicle accidents. However, the purpose of par (d), as inserted by the 2010 Amendment Act, is to expand the scope of the Act. Nor was it merely to remove an "inconvenience" arising from the temporal requirement; it was, in the words of Allsop P in Zotti, to address a capricious and arbitrary result. The second reading speech described Zotti as demonstrating "two unsatisfactory outcomes": the result was that the Government introduced legislation to "extend the cover provided by the compulsory third party policy to explicitly include coverage of incidents and accidents that occur as a result of a dangerous situation caused by the driving of a motor vehicle, a collision, action taken to avoid a collision or any vehicle running out of control". This underlying purpose is not promoted by imposing restrictions on what might constitute a "dangerous situation".
While noting, correctly, that resort to dictionary definitions in identifying the meaning of a statutory term "has been deprecated", [32] and noting that dictionary definitions of danger vary from something that "causes or is likely to cause harm" to something that is "full of" or "fraught" with risk, the judge adopted the latter "quantitative" element which, he concluded, "elevates the significance of the risk of harm". [33] However, as with all dictionary definitions, the choice of one meaning rather than another (where a word or concept has a range of usage) requires reference to the statutory scheme. The judge adopted the requirement of significant risk of harm on the basis that the purposes and objects of the Motor Accidents Compensation Act included "not only a desire to justly compensate claimants, but also a desire to have a sustainable scheme for insurance premiums". [34] The judge also considered that it was appropriate to construe the provision in a "restrictive fashion" consistently with Allianz and Zotti.
The conclusions reached by the judge were as follows:
"60 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.
61 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 [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."
The reasoning in these two passages is not entirely consistent. The former suggests that the issue was simply whether "the situation that the plaintiff faced was dangerous", to which it might be added, and was caused by the negligent driving, and the collision resulting from that driving, of the insured driver. It does not follow, and is not appropriate, to substitute the test in the final sentence of [61] for the statutory language.
In the course of oral argument, the respondent sought to obtain assistance from a recent judgment of the South Australian Court of Appeal in Kimber v Chief Executive, Department of Treasury and Finance, for Chief Executive, Department for Health and Wellbeing (SA Ambulance Service). [35]
Kimber concerned the scope of an entitlement to compensation under an industrial award in circumstances where the statutory entitlement to workers' compensation may not have been available. The award listed a number of situations (including an injury resulting from "conduct directed at the officer that is or appears to be a criminal offence"), and, relevantly, "other circumstances where the officer is placed in a dangerous situation". The Court accepted, as a matter of law, that the reference to a dangerous situation did not extend to any situation giving rise to a risk of harm or injury to an officer carrying out his or her duties. That followed from the statutory context and the purpose of the award in supplementing the statutory remedies. As the Court held, "[a] natural reading of the clause suggests that this is a catch-all clause for dangerous situations other than the dangerous situations described in the first three clauses". [36] Further the Court stated in the same passage:
"A practical reading suggests that, in context, the focus of the whole clause is on heightened risk presented by the circumstances in question."
The Court referred to the observations of the High Court in Burnie Port Authority v General Jones Pty Ltd, [37] in relation to what might be characterised as a "dangerous" substance or activity, but obtained little assistance from that discussion which concerned the scope of an occupier's liability in the law of negligence. Each step in the reasoning of the Court of Appeal in Kimber may be accepted, but its importance for present purposes lies in the Court's insistence on determining the meaning of the ordinary word "dangerous" in its statutory and practical context.
These are sufficient conditions to establish dangerousness in the circumstances of the case and thus the engagement of the Act and the third- party policy.
In resisting this conclusion, the respondent presented three broad, interrelated, arguments. First, it submitted that there were always potential obstacles and hazards on a country highway. These included livestock, wild animals, large dead animals, such as wombats, and, possibly broken down vehicles. Secondly, given these potential hazards, a driver should not go round a bend or over a crest at a speed greater than that which would permit stopping within the field of visibility. Thirdly, the fact that no other vehicle had collided with the end of the queue and that Mr Spratt, coming from behind did not collide, demonstrated that the situation was not relevantly a dangerous situation. (These submissions were also relied on in seeking to uphold the finding of contributory negligence.)
None of these submissions should be accepted. The first is beside the point. To envisage that an accident might have happened as a result of the materialisation of a risk which did not materialise is, by itself, irrelevant. It is only relevant if the second submission were accepted, namely that such unknown risks should be anticipated by not exceeding a speed which would allow the vehicle to be brought to a halt within a distance sufficient to avoid a collision whenever one of them materialised.
In support of the second submission, the respondent called in aid r 126 of the Road Rules 2014 (NSW), which requires that a driver "must drive a sufficient distance behind a vehicle travelling in front of the driver so the driver can, if necessary, stop safely to avoid a collision with the vehicle". It is by no means apparent, however, that the road rule had any application in the present circumstances. The concept of "travelling" behind a vehicle suggests movement of both vehicles. The appellant was not, relevantly, travelling behind any vehicle that was visible to her. Mr Spratt, who was travelling behind her, maintained the same speed she did and at a distance of some 4 or 5 vehicle lengths behind her. There was no suggestion that the appellant was too close to a vehicle travelling ahead of her. Indeed, since that vehicle appears to have been the utility, which was stationary when she was 50 or 60 metres behind it, she must have been travelling well clear of the vehicle when it was moving.
More broadly, there is no rule or practical requirement that a vehicle on a highway should not exceed the speed at which it can stop immediately once it surmounts a crest or rounds a curve or corner. Indeed, it might be thought dangerous if vehicles on a highway were required to slow from perhaps 110 or 100km/h to 40 or 50 when approaching a crest. Nor is the presence of livestock or wild animals a material risk in driving along a busy regional road in broad daylight. As a practical matter, there was no evidence that the appellant was exceeding a reasonable speed.
The respondent supported an aspect of the reasoning of the trial judge that a situation cannot be dangerous if injury could be avoided by other drivers taking reasonable care. [38] That reasoning should not be accepted. A person who puts obstructions in the path of traffic can create a dangerous situation even if subsequent drivers exercising reasonable care may be able to avoid the obstruction. The facts of Chapman v Hearse serve to illustrate the point. Mr Hearse, the driver of the car which killed Dr Cherry, was held to be negligent. Indeed, liability was apportioned as to 75% against him and as to 25% against Mr Chapman (who caused the original accident). Nevertheless, in holding that Mr Chapman did owe potential rescuers such as Dr Cherry a duty of care, the High Court referred to the "danger" which the initial accident had created. [39]
A similar illustration is found in the facts of March v Stramare (E & MH) Pty Ltd. [40] In that case a truck had been parked across part of a road in Adelaide, so as to enable the truck to be loaded with produce. It was about 1:00am and the truck had its parking and hazard lights on. The plaintiff was intoxicated and his car struck the truck, injuring the plaintiff. The trial judge upheld the plaintiff's claim against the owner of the truck, although the damages were reduced by 70% for contributory negligence. In the High Court, Mason CJ, upholding the finding, stated that the truck driver's "wrongful act in parking the truck in the middle of the road created a situation of danger, the risk being that a careless driver would act in the way that the appellant acted." [41]
Accordingly, the first and second submissions should be rejected.
The third submission also lacked substance. The fact that another vehicle has avoided a similar risk does not demonstrate that the situation it was in was not a dangerous situation. In any event, each of the vehicles ahead of the appellant had a greater opportunity to see the stationary queue after they rounded the curve. So far as Mr Spratt was concerned, coming behind the appellant, as noted above, he described the circumstances confronting him as he rounded the curve as an "'oh my god' moment". He obviously believed he was at risk of colliding with either the appellant or the utility. He attributed his success in avoiding an accident to the fact that he had a new car with an anti-lock braking system, good brakes and tyres. He was also an experienced driver who knew the road well. The fact that he foresaw danger strongly supports the conclusion that the appellant faced a dangerous situation.
Accordingly, the finding of the trial judge that the Motor Accident Compensation Act was not engaged was in error. It is therefore necessary to consider whether other elements of the tort of negligence were satisfied.
Once the vehicles involved in the collision and the injured or deceased persons had been removed from the scene, other factors may come into play. For example, in Zotti, there were apparently separate proceedings brought by Mr Zotti against the police and the fire brigade for failing to properly clean the oil off the road after the vehicles were removed. The present case involved no such novus actus interveniens, which might put an end to the liability of the insured driver.
The trial judge appears to have viewed the case as giving rise to a novel situation and a novel duty of care. However, that is only so if the class of road users is to be limited by some requirement, relating to the precise circumstances which eventuated. That course is not permissible.
The judge referred, in the course of considering the existence of a duty, to the statement in Roads and Traffic Authority of New South Wales v Dederer, [43] that the obligations imposed by a duty of a care are "of a particular scope, and that scope may be more or less expansive depending on the relationship in question".
This consideration diverted attention from the simple proposition that the duty of the insured to other road users was to exercise proper care in driving so as not to cause a collision. The content of the duty was unremarkable (as was breach). The statement in Dederer did not limit the class of persons to whom the RTA owed a duty: there was no doubt that the duty of care was owed to "all users of the bridge, whether or not they took ordinary care for their own safety". [44] The extent of the duty to take care in respect of Mr Dederer's conduct might not extend to taking a precaution which was not necessary in the case of a person exercising reasonable care for their own safety. No such issue arose in the present case.
There was significant discussion, both in the judgment and in oral submissions in this Court, as to the scope of a duty owed with respect to avoidance of mental harm. None of that case law or discussion is relevant in this case. The appellant suffered physical injuries. Constraints as to space and time which have arisen in developing a duty of care not to cause mental harm should not be imported into this discussion. Nor is assistance obtained from introducing in this context concepts such as vulnerability, used to control the potentially indeterminate scope of a duty to avoid economic loss. [45] As Kirby J stated in Perre v Apand:
"286 … Considerations of indeterminacy of liability, vulnerability to risk, the autonomy of the individual and market competitiveness are not issues relevant to all negligence actions. It is therefore quite inappropriate to elevate them so that they are legal preconditions to the existence of a duty of care in negligence or "principles" to be applied in deciding whether the duty exists in the particular case. They are not even essential or relevant to every case framed in negligence where the damage claimed is purely of an economic character, without physical injury to the plaintiff's property or person."
The conclusion reached by the trial judge was expressed as follows:
"95 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 care to prevent physical harm to this plaintiff."
This reasoning reflects the arguments rejected in Chapman v Hearse as to the need for precision in identifying the nature of the possible harm and the specific road user who might be at risk. It is sufficient for present purposes to conclude that a negligent driver who causes a collision on a regional highway creates a risk of injury to the vehicles and persons of other road users even though they are not involved in the initial collision. The appellant fell within that class. The insured driver owed her a duty of care.
Accepting that analysis, it followed that a reasonable person in the position of the insured driver would have taken precautions to avoid the collision, thus satisfying s 5B(1)(c). The judge accepted that that finding would follow, on the relevant assumption.
There are two difficulties with this reasoning. First, as has already been noted, the agreed stopping distances for a car travelling at 60 km/h was close to the likely distance between the appellant's vehicle and the utility at the time she first saw the utility. Secondly, the latter part of the reasoning is redolent of the reliance on the "last opportunity" to avoid injury reasoning which allowed courts to prevent injured plaintiffs failing at a time when contributory negligence was a complete defence. It was true that the negligent conduct of the insured driver had been completed long before the appellant was required to respond to the risk she faced. Nevertheless, that fact alone cannot reduce his culpability or impose a greater burden for her loss on her.
In my view, some weight may properly be given to the fact that the driver of the utility, with a little more time to respond, but probably not much, was able to avoid a collision. Further, Mr Spratt, with a similar time to respond, was also able to avoid a collision. In these circumstances, although it is not possible to say precisely why the appellant got into trouble and had to swerve up the embankment, it may properly be inferred that there was some element of insufficiency in her immediate response. In my view, an appropriate allocation of contributory negligence is 20%.
Collins at [109].
Collins at [112].
Stojan v Kenway [2009] NSWCA 364 at [136] (McColl JA).
Collins at [110].
Collins at [114].
Collins at [124].
Collins at [132].
Collins at [133].
Collins at [135].
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Decision last updated: 02 August 2022