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Damages awarded to driver injured swerving another accident creates precedent for negligence in Victoria

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Please note that this post was written for Victorian audiences and the information within may not apply to other regions.

A Victorian man, represented by Zaparas Lawyers Senior Associate Gabriella Boyd, has been awarded damages for the drivers injuries after he crashed his car swerving to avoid a sudden build-up of traffic from another accident that happened ahead four minutes earlier.

The judgement clarified the duty of care owed between road users and extended the typical chain of causation in road accidents. It essentially created a new precedent around negligence in Victoria.

The accident and circumstances

The now-60-year-old was driving to a worksite in 2013 when he was involved in a traffic accident.

He was driving on a freeway on-ramp, approaching a blind corner, travelling behind a truck that obscured his vision further, when the vehicle in front of him suddenly braked. As a result, the client has also braked hard to avoid a collision. Unfortunately, due to a combination of wet weather and heavy tools unbalancing his vehicle, the client has lost control of the vehicle and hit a stone wall that was part of a bridge support, causing his vehicle to flip on its side.

The accident happened because there was another accident approximately 150m – 200m ahead causing traffic to bank up, although this had not been visible to the client approaching the corner.

The client suffered fractures to his spine and a psychological reaction. His injuries meant he couldn’t sit or kneel down for long without his legs feeling numb and had constant pain in his upper back, shoulder and neck throughout the day, stopping him from working.

At the time, he was a self-employed tiler who was subcontracted to a large housing developer, so he didn’t have annual leave or sick leave to fall back on to help him financially.

The client made a WorkCover claim and sued for common law damages under the TAC and was ultimately successful.

During a fortnight-long trial, it was found that both he and the driver who caused the first collision, despite it having happened minutes before, shared in the fault for causing his injuries.

He was awarded compensation for his injuries from TAC with a 50 per cent reduction for contributory negligence.

About the judgment

The critical part of this case was the chain of causation that connected our client’s single-vehicle accident to the so-called “primary collision” that occurred ahead of him.

Gabriella was successful in her submission that the primary collision created traffic hazard that was a situation of emergency, and that it was foreseeable that drivers coming upon this dangerous situation would react in various ways – that is, some drivers would react in a way that allowed them to avoid a collision, and other drivers would react in a way that did not allow them to avoid it.

The judge found that our client’s accident was caused by the hazard created by the negligence of the driver who caused the primary collision.

The judge also found that despite several minutes having passed between the primary collision and our client’s accident, and also despite the physical distance between the two accidents, there was a sufficient connection in distance and time for the consequences of the negligent driver’s actions from the primary collision to still be “in play” during our client’s accident. In other words, our client was within the class of road users to whom the negligent driver in the primary collision owed a duty of care – although a 50 per cent contribution was deducted for our client not reacting better to the situation of emergency.

A precedent for this was set by the NSW Court of Appeal in Collins v Insurance Australia Ltd [2022] NSWCA 135, which was handed down on August 2, 2022 – just a day prior to our proceedings commencing.

In the Zaparas Lawyers case, Judge Purcell adopted the reasoning into Victorian law, essentially creating a new precedent around negligence for TAC claims in Victoria.

Listen to senior associate Gabriella Boyd talk about the accident and this new precedent on ABC Radio here

View a condensed version on our socials here

Relevant Blogs on TAC below:

New Driver Distraction Road Rules introduced in Victoria 2023

Claiming transport accident benefits if you’re at-fault

How to make a TAC claim when injured by an Unidentified Vehicle