A woman who suffered personal injuries when she swerved her vehicle up an embankment to avoid colliding with vehicles in a traffic jam arising from an earlier unrelated motor vehicle accident was successful on appeal against the insurer of the negligent driver of the earlier accident after the Court of Appeal found that the traffic jam caused by the earlier accident was a 'dangerous situation'.
The background
On 17 August 2014, the driver of a motor vehicle ('the insured driver') crossed onto the wrong side of the road and collided with another vehicle, on the Kings Highway in Canberra. Ms Sue Collins ('the appellant') was driving north-west on the Kings Highway, approximately 1 to 2 km from the earlier accident site. Following a long blind bend in the road, she was faced with a line of stationary vehicles that extended from the earlier accident. To avert a collision with the rear-most vehicle, she steered her vehicle up an embankment on the left side of the road. In doing so, her vehicle overturned and she sustained personal injuries. She brought a claim for compensation against the insured driver’s compulsory third party ('CTP') insurer pursuant to the Motor Accidents Compensation Act 1999 (NSW) (MACA).
The decision at trial
The primary judge held that the insured driver was not liable for the appellant’s injuries as her claim was not covered by the insurance policy because her injuries were not the result of a 'dangerous situation caused by the driving of the vehicle' pursuant to section 3A(1)(d) of the MACA. The primary judge found that a traffic jam did not present a significant risk of physical injury to a motorist who approached the last of the vehicles in that traffic jam, and that the insured driver was not responsible for generating a 'dangerous situation'. The primary judge also held that the insured driver did not owe a duty of care to the appellant because her accident was remote from the earlier accident.
The issues on appeal
- The main issue considered by Court of Appeal was whether a traffic jam arising from an earlier accident caused by the insured driver’s negligence was a 'dangerous situation' under section 3A(1)(d) of the MACA.
The decision on appeal
The Court of Appeal held that whether a situation is 'dangerous' must be determined by reference to the circumstances immediately prior to the injury. The Court of Appeal found that the traffic jam resulting from the earlier accident was a 'dangerous situation' because (i) a queue of stationary vehicles was not visible to a driver until within 50 to 65 metres; (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 than 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 60km/h could not stop in time without difficulty.
The Court of Appeal held that the insured driver owed and breached a duty of care to the appellant for causing a collision on a regional highway and creating a risk of injury to other road users who were not involved in the initial collision. The Court of Appeal found that the consequential risks arising from a collision on a two-lane highway were foreseeable and not insignificant, and that a reasonable person in the insured driver’s position would have taken precautions to avoid the collision.
The Court of Appeal also found the appellant was 20% contributorily negligent, on the basis that the driver of the rear-most vehicle in the queue and the vehicle behind her were able to avoid a collision and injury.
Implications for you
This case demonstrates that a driver may be found liable where they create a 'dangerous situation' that obstructs the path of other drivers which requires the other drivers to take evasive action to avoid a collision.
