CTP Insurance | QLD

BACKGROUND

In the recent decision of Bates v Gillham[1] the New South Wales Court of Appeal was required to consider whether a driver was negligent for bringing her vehicle to a stop on the Great Western Highway in order to make a lawful right hand turn into a fruit barn. While the Defendant was waiting for traffic to clear to enable her to turn into the fruit barn, the Plaintiff collided with the rear of the Defendant’s vehicle.

This particular stretch of highway involved a speed limit of 80km/h and consisted of two lanes in either direction (four lanes in total) which were separated by unbroken lines. The Defendant was travelling in the centre lane. On approach to the fruit barn the Defendant braked and placed her right indicator on 130m before bringing her vehicle to a stop. The Defendant initially slowed down 80m prior to the entry to the fruit barn but, upon realising that this was actually the exit point rather than the entry point, she continued on further up the highway.

At the time of the accident, traffic was light and visibility was good such that it was accepted the Plaintiff had a line of sight of 130m ahead of him to the point where the Defendant had stopped.

The trial judge accepted that the right turn being undertaken by the Defendant was lawful and was not in breach of any traffic rule or regulation.

The Plaintiff submitted that, instead of stopping on the highway to make the right hand turn, the Defendant ought to have performed an alternative manoeuvre, such as by using a U-turn bay which could have been accessed via a slip lane on the left hand side of the highway. There was a U-turn bay sign on the left side of the highway approximately 20m past the exit from the fruit barn with the entrance to the U-turn bay being some 40m beyond the exit from the fruit barn.

The Defendant, whose attention was focussed on her right, failed to see the U-turn bay sign.

TRIAL

At first instance, the trial judge found that the Defendant had breached her duty of care owed to the Plaintiff on this basis:

To stop on such a road in any circumstances other than emergency would appear always to have a risk involved because of persons of following having limited or restricted sight because of other vehicles or because of the requirement for them to consider other vehicles on the road. In my mind, the initiating act of negligence in this matter is the Defendant’s failure to move over to the left at an earlier point and to effectively make a decisive manoeuvre either at the point where the impact occurred or at the U-turn bay. … However, the primary cause of this accident in my mind is the Defendant’s actions in stopping effectively twice in circumstances where she was conscious of the risk to her and others by her movements.[2]

Accordingly, judgment was given in favour of the Plaintiff but was reduced by 50% on account of contributory negligence. The trial judge discounted the award by 50% on account of contributory negligence by reason of the Plaintiff’s failure to keep a proper lookout for his own safety.

APPEAL

The Defendant appealed on the basis that the trial judge was in error in finding that she had breached her duty of care owed to the Plaintiff.

The appeal focussed on the conduct of the Defendant.

The New South Wales Court of Appeal held that the trial judge had erroneously failed to find that the Defendant had engaged her brake lights, taking into account that the Plaintiff bore the onus of proving the contrary, and that the trial judge’s finding that the Defendant had stopped ‘effectively twice’ was not open on the evidence.

As to the reasonableness of the Defendant’s actions in attempting the right hand manoeuvre, it was highlighted that the Plaintiff bore the onus of proving that a reasonable person in the Defendant’s position would have instead used the U-turn bay as a precautionary measure. The Plaintiff failed to prove this and it was held that there was nothing inherently unreasonable about the course the Defendant took.

In a majority judgment, the New South Wales Court of Appeal allowed the Defendant’s appeal and set aside the decision of the trial judge. It was held that, in all the circumstances, there was no basis to conclude that the Defendant had failed to exercise reasonable care for the safety of other road users, including the Plaintiff, because:

  1. it was a legally available manoeuvre;
  2. the traffic was light and visibility was good;
  3. given the speed limit and that traffic approaching from behind had just come up a hill, there was ample opportunity for cars to see the [Defendant’s] vehicle and take appropriate action to avoid it;
  4. she had indicated in ample time her intention to turn right and had applied her foot brake; and
  5. she was not aware of a possible alternative course of action, a fact which was not itself shown to be unreasonable.[3]

In most cases, the driver of a following vehicle which collides with the leading vehicle is usually held liable for the accident.[4]

Historically, even if the Plaintiff does establish negligence on the part of the lead driver, there will ordinarily be a significant discount to account for the Plaintiff’s own negligence in failing to keep a reasonable and proper lookout for his or her own safety by failing to avoid the accident. [5]

This case illustrates the difficulties faced by a following driver in attempting to establish negligence on the part of a lead driver. The evidentiary burden on a Plaintiff to prove that the accident was caused by the negligence of a lead driver is a high one and will often prove difficult to discharge.

What proved fatal to this Plaintiff’s case was his opportunity to avoid the accident taking into account his clear visibility of the Defendant’s stationary vehicle and that the Defendant had provided reasonable and adequate warning of her intention to turn right by braking and using her right indicator.

Further, this case serves as a reminder that the Plaintiff bears the onus of proof in establishing that an alternative manoeuvre could have been taken by the Defendant, was known to the Defendant and a reasonable person, in all the circumstances, would have performed that alternative manoeuvre.