ISSUE

In Smith v Randall & Anor[1] His Honour Justice Applegarth was required to assess and apportion liability between two drivers who were involved in a motor vehicle accident. Each driver pursued a claim against the other for damages for personal injuries arising from the motor vehicle accident. Each driver alleged the accident was caused by the other’s negligent driving. Each vehicle was insured by a policy of compulsory third party insurance pursuant to the Motor Accident Insurance Act 1994 (Qld) that responded to such claims. There were also issues in relation to one of the drivers being intoxicated by alcohol.

BACKGROUND

On 21 January 2013 at approximately 5:00am Mr Randall was travelling in a utility vehicle in a westerly direction along the single lane Gore Highway. It was just on dawn.

Mr Smith was travelling in a milk truck in the same direction behind Mr Randall.

As Mr Randall approached his destination, which was on the right hand side of the highway, he slowed to about 10km/h in preparation to enter a driveway to the Barham Stud track. On his left, at approximately the same point along the highway, the Westbrook Wyreema Road joined the highway at a T junction.

Mr Smith moved into the easterly lane (the wrong side of the road) in order to overtake Mr Randall who Mr Smith thought was either broken down, travelling slowly or stopped completely.

When Mr Smith was around 10 metres from Mr Randall’s vehicle he tooted his horn at which time Mr Randall made a right turn into the path of, and collided with, Mr Smith’s vehicle.

MR SMITH’S EVIDENCE

Mr Smith thought that Mr Randall had slowed down in order to ‘apex’[2] the left corner into Westbrook Wyreema Road. His Honour found this evidence unconvincing taking into account how slow Mr Randall was travelling.

Critically, under cross-examination Mr Smith conceded, despite an earlier statement to the contrary, that he could have stopped or avoided the accident ‘if I had to’.

His Honour found that Mr Smith breached his duty of care to Mr Randall as a fellow road user:

In summary, Mr Smith failed to take appropriate precautions. He should have rapidly decelerated when he realised that the utility was moving to the centre line of the road and that he was gaining on it. Even if he was about 100 metres away from the utility when he realised there was a problem, he had sufficient time to slow his truck by braking without undertaking a dangerous braking procedure. There was sufficient time to slow. Instead, without having a reasonable basis to conclude that the utility was turning left (given the lack of any indication, the vehicle’s slow speed and its position on the road) and in circumstances in which there was a substantial risk that the utility might turn right without indicating, Mr Smith overtook it on its right side at a reasonably high speed. In failing to observe the speed and direction of travel of the utility at an earlier time and to have reacted accordingly, Mr Smith breached his duty of care. He also breached his duty of care, once he realised there was a problem, in failing to slow behind the utility and in attempting to overtake it in circumstances where it was not safe to do so.[3]

MR RANDALL’S EVIDENCE

His Honour considered Mr Randall to be ‘completely unconvincing’ and was ‘prepared to say just about anything to suit his case’.[4]

His Honour held that Mr Randall failed to use his indicator, failed to keep a proper lookout and drove without due care and attention:

If, as Mr Randall says, the truck seemed to “come out of nowhere” then it is because Mr Randall did not bother to look into his rear view mirror when approaching the point at which he intended to turn right. If he saw the truck at all then it was probably after he had committed to making the turn and as Mr Smith was effecting the overtaking manoeuvre. By then it was probably too late to avoid the collision. However, he only came to be in that position because he failed to indicate, failed to drive with due care and attention and failed to keep a proper lookout before making the turn. In the result, he made a right hand turn when it was not safe to do so.[5]

INTOXICATION OF MR RANDALL

Mr Randall recorded a blood alcohol content of 0.058% at a roadside breath test. A subsequent sample taken approximately two hours later recorded a blood alcohol content of 0.022%.

His Honour stated that a determination of whether a person was ‘intoxicated’ for the purposes of the Civil Liability Act 2003 (Qld) (CLA) required consideration of ‘all the circumstances of the case, not simply a blood alcohol content’:[6]

His Honour found that at the time of the accident Mr Randall was drowsy, hungover and still under the influence of alcohol. The influence of alcohol was considered to have been causative of the accident in the sense that it contributed to Mr Randall’s failure to use his indicator, failure to use his mirrors and failure to drive with due care and attention.

Accordingly, the presumption of contributory negligence under section 47 of the CLA was enlivened. The presumption was not able to be rebutted by Mr Randall.

APPORTIONMENT

His Honour held that each driver’s breaches of duty had a ‘similar causative potency’ and each ‘contributed fairly equally’ to the accident. Accordingly, His Honour apportioned liability equally between the parties.

SUMMARY

It has historically been difficult for a following vehicle to establish negligence on the part of a leading vehicle. This is primarily due to the fact that a following vehicle is, in most cases, in a better position to avoid the accident. The evidentiary burden on a following vehicle 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.