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At about 2pm on Sunday 17 August 2014, Lisa Collins was heading northwest in the direction of Canberra on the Kings Highway near Monga NSW.
She came around a bend in the road and was suddenly confronted with a line of stationary vehicles the last in line being just 60m ahead.
Swerving to avoid a collision with the rear-most vehicle, she mounted an embankment causing her car to overturn.
The vehicles ahead were stopped because the road was blocked from a head-on highway accident some 2 kms to the North that had occurred about 45 min earlier.
Collins decided to file an injury compensation lawsuit against the third-party insurer of the vehicle at fault for the earlier collision for having negligently crossed in front of oncoming traffic, to the wrong side of the highway.Damages were agreed at $250,000 but the insurer contended it should pay nothing because the insured driver owed no duty of care.
Even had such a duty been owed, the insurer argued the duty had not been breached because the risk of harm – ie a further accident 2 km away – was “insignificant”.
Judge Alister Abadee agreed and dismissed the claim in the NSW District Court in August 2021.
He also ruled that the claim failed because Collins’ injuries were not the result of a “dangerous situation caused by the driving of the vehicle” as required by the relevant provision of the NSW Motor Accidents Compensation Act.
Collins appealed.
Justice Basten in delivering the lead judgment observed that a negligent driver who causes a collision on a regional highway creates a risk of injury to other road users even if they weren’t involved in the initial collision.
In his view, the distance in time and space between the insured driver’s collision and the Ms Collin’s accident was not so great as to put her beyond the class of road users to whom such duty was owed.
“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”.
In reversing the trial judge’s finding that the risk of harm was insignificant, the appeal judges observed that the seriousness of a potentially adverse outcome had to be considered.
The consequential risks to other road users arising from a major collision on a two-lane highway were in this instance, so held the court, “not insignificant” and were “foreseeable”.
“A reasonable person in the insured driver’s position would have taken precautions to avoid the collision,” they concluded.
Those precautions were the same precautions he was required to take in order to avoid causing the original collision.
Having admitted fault for the head-on highway accident, it followed the driver in the first collision was – in these circumstances – at fault for the second one.
They also ruled that Ms Collins’ accident had indeed arisen from a “dangerous situation” created by the line of stationary vehicles that following cars might come upon very suddenly.
“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”.
They assessed Collins 20% contributorily negligent as compared to the trial judge’s apportionment of 65%.
Collins v Insurance Australia Ltd [2022] NSWCA 135 Meagher JA Kirk JA Basten AJA, 2 August 2022 Read case
Categories: car accident