Insurer liable in dual proceedings involving driver who lost control while driving on a patch of newly laid road owned by the council.

In Issue

  • The cause of a head on collision between the first defendant and an oncoming vehicle in a roadworks area

The Background

This case involved two proceedings that were heard together as they involved claims arising out of the same motor vehicle accident. The first proceeding was brought by Mr Andrew Mott and the second proceeding, by Ms Lauren Prosser.

On 3 November 2012, Mr Mott and Ms Prosser were injured in a head on motor vehicle collision. Mr Mott was the front seat passenger in a motor vehicle driven by his de facto partner, Ms Philip (the first defendant in both proceedings) when her vehicle collided with a vehicle driven by Ms Prosser just north of a newly laid section of bitumen and aggregate near Sarina in far north Queensland.

Ms Philip was insured by NRMA Insurance Australia Ltd (NRMA), the second defendant in both proceedings. Mr Mott also joined Mackay Regional Council (the third defendant in the first proceedings), who contracted the roadworks to be performed by Downer EDI Works Pty Ltd (a defendant in both proceedings) who had subcontracted some of the work to be undertaken by BRW Transport and Quarries Pty Ltd (also a defendant in both proceedings). The Mackay Regional Council, Downer EDI Works and BRW Transport (“the roadworks defendants”) all defended the proceedings jointly.

During the proceedings, the parties argued that Ms Philip was driving at excessive speed in the roadworks area, and that she failed to maintain control over her vehicle. Ms Philip had no recollection of the accident due to the brain damage she suffered in the collision.

The area in which the accident occurred had a 100km/hr speed limit. The area otherwise had signs warning of a curved road and advising a 70km/hr speed. A sign indicating loose stones on the road was also present on the road on the afternoon of the accident. The arguments against the roadworks defendants were that the aggregate on the road made it dangerous for drivers, and that speed control signs and warning signs should have been erected to warn oncoming motorists of that danger.

The Decision

The roadworks defendants were not liable. Whether there was a need to place a compulsory speed sign depended on the extent of the danger presented by the roadworks. The evidence was that the spread of the aggregate was light and minimal. The court noted that no other driver had lost control in the aggregate, despite eighteen other vehicles passing through the roadworks area in the 30 minutes before the accident. As a result, the court was not persuaded that the roadworks defendants breached their duty to care by failing to erect such a sign. Although it was not necessary to do so, the court considered the issue of causation and held that lowering the speed control sign in the roadworks area would not necessarily have changed the outcome.

As to Ms Philip’s liability, the court could not find any evidence to explain her loss of control of her vehicle. The court found that it was likely that Ms Philip had acted in a way that caused her to lose control of her vehicle while she was driving on the aggregate. A reasonable driver would not have lost control while driving in the aggregate and therefore Ms Philip was found to have been negligent.

Implications for you

This case demonstrates a practical approach taken by the court in relation to the expectations on local councils in relation to speed signage when roadworks are undertaken. If a roadworks area can be traversed safely at a regular speed, councils (and companies performing roadworks) will not breach their duty of care merely by failing to lower the speed limit.

Mott v Philip & Ors; Prosser v Philip & Ors [2017] QSC 212