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A person injured as a result of a vehicle “running out of control” gets the benefit of the vehicle’s CTP insurance coverage. But is cover restricted to injuries caused by a vehicle “running out of control” while it is being driven? Or does it extend to unoccupied runaway vehicles?
Consider the case of Ed van Der Weer who had been driving his Victorian registered Mitsubishi motorhome along the Burnett Highway when he noticed an oil warning light up on the dashboard.
After pulling into a truck stop near Ban Ban Springs about 25 km east of Gayndah, he called for assistance.
It was a cold Sunday afternoon in August 2019 when Claytons Towing Service answered the call and dispatched tow truck operator Colin Anderson who made his way about two hours later to the broken-down bus.
Anderson was an experienced towie who agreed with the owner that the bus would need to be towed to a mechanic.
He positioned the tow truck’s T-bar beneath the front of the bus and briefly lifted the vehicle to test whether the rear wheels were locked. He heard what he described as a “metal-to-metal” sound, a noise tow operators associate with a vehicle being held firmly by its handbrake. The sound reassured him the bus was secured.
He then entered the bus with Ed to examine the controls and saw ratchet handbrake lever was raised, the normal position indicating it was engaged.
Ed asked if the towie wanted the handbrake released before the tow. Colin’s response was emphatic.
“No. Definitely not,” Anderson said. “The brakes must stay on. It’s the last thing we take off before we leave. My life depends on it.”
In preparing the vehicle for a tow, Anderson raised the front axle using the tow bar and slid two cube-shaped wooden blocks – about eleven inches across – under the front tyres.
He then crawled beneath the passenger side of the bus with a remote control around his neck to operate the tow arm and lowered the vehicle slightly so its weight rested on the wooden blocks.
The bus then suddenly rolled forward off the blocks and the structure beneath the underside of the vehicle holding the spare tyre crushed down onto his chest and abdomen.
Everything went black. For roughly fifteen to twenty seconds the towie was pinned beneath the bus before managing to reach the remote control and lift it just enough to crawl free.
In the panic of the moment, Ed said something that would later become pivotal in the inevitable injury compensation claim that was to follow litigation: “I thought you wanted the brakes let off.”
The accident left Anderson with severe internal chest injuries. Multiple ribs were fractured, causing damage to the intercostal nerves that run beneath each rib. Fluid accumulated around one lung, requiring drainage. The trauma triggered chronic neuropathic pain that ordinary analgesics could not control.
A series of spinal injections provided temporary relief but the pain returned. Ultimately surgeons implanted a spinal cord stimulator — an invasive device that delivers electrical impulses near the spinal cord to block pain signals. The stimulator initially reduced his pain but required revision surgeries and battery replacements.
Psychologically the trauma lingered as well. Psychiatrists diagnosed a chronic post-traumatic stress disorder linked directly to the accident.
When the matter came before in the Supreme Court in Brisbane, Ed insisted he never released the handbrake. He said he had applied it when stopping the bus and that it was his normal practice to do so.
Justice Michael Copley was not convinced.
Video footage from a camera mounted on the tow truck showed Ed standing near the driver’s seat shortly before the accident and bending down toward the floor — consistent with reaching for the handbrake lever.
The judge accepted Anderson’s evidence about the bus owner’s post-accident statement: “I thought you wanted the brakes let off.”
Ed had also told a police officer that the tow driver knew the vehicle was in neutral and that the handbrake was not on.
The judge concluded the vehicle owner had indeed released the handbrake after Anderson had inspected it and despite being instructed not to do so.
But did the unusual circumstances of the accident qualify for coverage as a motor accident under Queensland’s compulsory third-party motor accident regime?
Anderson’s contention that his injuries were connected with the “driving” of the bus was rejected. Releasing the handbrake was not driving; the engine was off and no one was controlling the vehicle’s direction.
However the court held the injury was caused by another event that extended CTP coverage namely, the bus “running out of control”.
Justice Copley ruled that a vehicle can “run out of control” even when not being driven, i.e. if it moves while no one is able to steer or brake it.
The insurer nevertheless argued Anderson himself was partly to blame for failing to personally recheck the handbrake before crawling under the bus.
The court rejected that argument as he had followed the system he had been taught, heard the confirming metal sound, visually checked the brake, and instructed Ed not to release it. At worst any failure to recheck was mere inadvertence, not negligence.
By the date of trial, Anderson had lost his capacity to work as a tow truck driver. The chronic chest pain, spinal cord stimulator, and psychological trauma diagnosed by psychiatrist John Foxcroft made heavy physical employment impossible.
He had as a result, lost the physical life he loved—heavy towing, gardening, fishing, long drives.
Anderson also succeeded in his claim against his employer Clayton’s Towing on the basis of an unsafe system of work.
The damages assessed in respect of the CTP claim at common law exceeded $2.5 million while those assessed against the employer under the Civil Liability Act were a little shy of $1.1 million.
The main difference between the two assessments was slightly higher common law general damages assessment and allowances in that claim (but not in the employer claim) for past and future care of more than $1 million.
Anderson does not get to receive the two assessments, only the higher sum of $2.5 million of which $546,000 was ordered to be paid by the employer’s insurer (WorkCover) and close to $2 million by the CTP insurer.
Anderson v Claytons Towing Service Pty Ltd & Ors [2026] QSC 26 Copley J, 5 March 2026
Categories: car accident