Vos v Hawkswell & Anor [2009] QDC 332


His Honour Searles DCJ found against the plaintiff 100% in a claim for personal injuries following a motor vehicle accident.

The decision is helpful in its summary of the general principles when considering motor vehicle accidents:


[32] Despite my acceptance of the defendant’s version of events as to how the accident occurred it does not necessarily follow that the plaintiff is to be held entirely responsible for the accident. What I have to determine is whether the defendant contributed in any way to the collision. In Sibley v Kais[54] the High Court is considering the liability of the two parties who had collided after both entered the intersection.
[33] In considering the responsibilities of each of the drivers the court said:-[55]

“The obligation of each driver of two vehicles approaching an intersection is to take reasonable care. What amounts to “reasonable care” is, of course, a question of fact but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, should he find another vehicle approaching from his right or from his left in such a fashion that, if both vehicles continue, a collision may reasonably be expected.”

[35] In Rains v Frost Enterprises Pty Ltd[56] the then Full Court was considering an appeal from a 40% apportionment against involved an appeal from a finding of 60% liability against the defendant. Briefly stated, the defendant was a lead warning vehicle for a large vehicle and had pulled over together with the larger vehicle on the side of the Bruce Highway for a rest. When it was decided to proceed the driver of the warning vehicle drove onto the Highway with the view to indicating to the larger vehicle when it was safe for it to do likewise. The warning vehicle drove slowly onto the Highway and two other cars past him without difficulty. The plaintiff’s car then struck the right rear of the vehicle which was still moving slowly and spun out of control. The trial judge found that the utility would have been visible to the plaintiff and apportioned 40% liability against the plaintiff and 60% against the defendant.
[36] On appeal, the court set aside the trial judge’s order and entered judgment for the defendant. In the course of the judgment Dunn J identified what he saw as the “special relation” between “leading car” and “following car” on a quite long straight stretch of road in conditions of good visibility. He said:[57]

“I have queried whether His Honour correctly appreciated the nature of the special relation between the leading car and the following car on a quite long straight stretch of road, in conditions of good visibility. The essence of that relation is that the follower is in a better position than the leader to observe, and thus is able to make a choice between creating a hazardous situation (as, by failing to steer clear) and a safe situation (as, by steering well clear, or by stopping, if he is in doubt as to the leader’s intentions).


It is because of this aspect of the relationship that one finds such judicial observations as the following:-

‘The duty of an overtaking car is to watch carefully the leading car. If the onus lies on one more than the other, the overtaking car has to show that the leading car is responsible for the collision.’

Twiehaus v Morrison (1947) NZLR 197 at 202:-

‘The following vehicle has the leading vehicle under observation, and it must be expected to watch the leading vehicle for any indication of its intention, but – without the negligence on his part – the driver of the leading vehicle may not know of the presence of the following vehicle, and the driver of the latter cannot assume, as the other may, that he is under observation.’

Kleeman v Walker (1934) SASR 199:-

‘If it be practicable to pursue a course which is safe, and you follow so closely upon the track of another that mischief may ensue, you are bound to adopt the safe course – when one coach follows a close upon the track of another, and there are two ways, one of which is perilous and the other safe, the driver is bound to adopt that which is safe.’

Mayhew v Boyce 1 Stark.423 (171 ER 517):

‘-the duty which the plaintiff owed to the defendant was to keep to his right side of the road and not to change his course without due and adequate warning under the circumstances, to the defendant. If that were not so, of course, no one could pass safely. On the other hand, the duty which the defendant owed to the plaintiff lies in this: that he was overtaking the plaintiff and his duty was not to run down with his car the plaintiff’s car.’


(Direction to the jury in Warren v Grinnel Co., cited with approval by Macdonald JA on appeal – (1936) 4 DLR 544, at 554):-

‘Whilst the relationship will vary with the circumstances of each case, such as the nature of the road, the usual speed of traffic, and traffic laws or conventions in force, it must always be appreciated and given due consideration’.”

[37] More recently, however, in Freeleagus v Nominal Defendant[58] Keane JA said:-[59]

“One must not overemphasise the responsibility of the following driver or the importance of that driver’s opportunity to avoid the risk created by the carelessness of another. It must be emphasised of course, that cases of negligence in the management of motor vehicles must always be resolved on their own particular facts.”

[38] The question then is whether the defendant took reasonable care in all the circumstances. That calls for an identification and assessment of the risk of the ultimate collision. In Freeleagus the defendant had parked her vehicle off the Pacific Highway after her right-hand front tyre had deflated through no fault on her part. The rear of her vehicle was intruding partly into the right-hand lane of the three southbound lanes and the plaintiff’s vehicle collided with it. The court found[60] that the situation of that vehicle did create a danger of collision, albeit not of the making of its driver.
[39] Considering the present facts, in my view the mere presence of a stationary vehicle on the side of a busy road, without more, would not usually create a danger of collision with other vehicles on the road. That is not to say that drivers of passing vehicles would thereby be relieved of the accepted duty to exercise reasonable care to avoid any foreseeable risk of a collision by, for instance, keeping a close eye on the stationary vehicle when approaching it to pass, lest it commence to enter the carriageway with little or no warning. If that occurred and a collision followed, the question to be addressed would be ‘whether the driver of the vehicle approaching the stationary vehicle exercised reasonable care in all the circumstances’.
[40] In the context of the events I have found occurred prior to the plaintiff pulling off to the side of the road, the question arises as to whether the plaintiff’s previous erratic driving should have given rise in the mind of the defendant to a heightened risk that the plaintiff may continue that behaviour and re-enter the road in other than safe circumstances. I consider that the answer to that is ‘Yes’ so that the defendant should have been alert to that potentiality.
[41] The next question is whether the defendant, in those circumstances I have found to exist, exercised reasonable care to avoid the collision. He was travelling at a low speed of 10kph – 15kph. He was aware of the plaintiff’s position on the side of the road; he was driving with a load of 2.7 tonnes with three racehorses on board whose safety he was clearly concerned with. The plaintiff was aware of his presence on the road and that he was travelling towards him. In my view, the duty he owed to the other road users would not have extended to stopping his vehicle in anticipation of the plaintiff pulling out in front of him. That would run the real risk of creating yet another hazard on the busy road in question. Rather, I consider the duty on the defendant in all the circumstances imposed upon him an obligation to drive at a speed and to otherwise manage his vehicle so as to be able to avoid a collision in the circumstances of the heightened risk I referred to. Of course, there will always be a point in time when no degree of care by one driver can avoid the consequences of the absence of care of the other. In my view, this was just such a situation.
[42] I am unable to see that it could be said that the defendant was driving other than reasonably in the overall management of his vehicle in the relevant factual context. Accordingly, I find no negligence on the defendant’s part whether contributing to the collision or otherwise. The plaintiff’s claim is dismissed.

Brisbane Barrister – David Cormack

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