The Obligations of Motorists when Confronted with Turning Heavy Vehicles - Shaw v Menzies & Anor [2010] QSC 390 By Peter Banco & Paul Angus | November 2010 Area of Expertise | General Insurance
Summary In Shaw v Menzies & Anor [2010] QSC 390 the Supreme Court of Queensland on 30 September 2010, in the single Judge decision of Justice Martin, held that the obligation rests on both the drivers of heavy vehicles and ordinary passenger vehicles to act reasonably in all circumstances – including in circumstances where a driver is permitted to perform a dangerous manoeuvre by virtue of the road rules.
Who Does This Impact? Motor vehicle insurers and self insureds.
What Action Should Be Taken? Insurers should bear in mind that although a driver’s conduct may be strictly allowable under the relevant road rules, compliance with the road rules themselves does not alone absolve a driver from a finding of negligence.
The Facts John Shaw was riding his motorcycle when it was involved in a collision with the prime mover driven by Andrew David Menzies. At the time, Mr Menzies’ prime mover was towing a semi-trailer that had a wide load and attempted a left turn when occupying two lanes. Mr Menzies’ prime mover and semi-trailer was fitted with a flashing amber light on the rear of the trailer, delineator signs, ‘Oversize’ signs and ‘Do Not Overtake Turning Vehicle’ signs. Mr Shaw sought to overtake the turning truck on the left, however, collided with Mr Menzies’ prime mover causing substantial injuries to Mr Shaw.
The Parties’ Evidence Mr Shaw gave evidence that he was travelling in the kerbside lane when Mr Menzies made the left turn without warning. Mr Shaw said that he was beside Mr Menzies’ truck when he saw the front of the prime mover start the left turn and fearing that he would be struck by the trailer coming across the kerb, accelerated to try and pass the truck. Mr Menzies denied Mr Shaw’s version of events, stating that on approach to the intersection he positioned his truck so that it was straddling both the kerbside lane and the middle lane. Mr Menzies stated that he had the ‘right of way’ as he was permitted under the road rules to ‘take both lanes’ as he had a wide load.
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The Obligations of Motorists when Confronted with Turning Heavy Vehicles by Peter Banco & Paul Angus
The Decision Justice Martin in the Supreme Court of Queensland commented that Mr Menzies was correct insofar as the Transport Operations (Road Use Management – Road Rules) Regulation 1999 allowed a vehicle such as Mr Menzies’ to have the right to turn left from the middle lane and other vehicles were required to give way to it. However, Justice Martin found that the right to make such a turn is not absolute and all manoeuvres on the roadway must be exercised with care and with due observance of all circumstances. Justice Martin noted that the previous decision in Rains v Frost Enterprises Pty Ltd [1975] Qd R 287 of Justice Dunn that: ‘The essence of that relation (i.e. the relationship between a car being overtaken and the overtaking car) 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 a failure to steer clear, and a safe situation, as by steering clear, or by stopping, if it is in doubt as to the leader’s intention’ should be applied with caution, as Justice Dunn did not suggest that the driver of the following vehicle is inevitably liable and liability must be determined by the facts of each case. Justice Martin affirmed the High Court decision of Sibley v Kais [1967] 118 CLR424, that a driver in Mr Menzies’ position must remain alert for other drivers who may not be complying with the rules of the road: ‘The common-law duty to act reasonably in all the circumstances is paramount…there is no general rule that in all circumstances a driver can rely upon the performance by others of their duties, whether derived from statutory sources or from the common law. Whether or not in particular circumstances it is reasonable to act upon the assumption that another will act in some particular way, as for example by performing his duty under a regulation, must remain a question of fact to be judged in all the particular circumstances of the case…The obligation of each driver of two vehicles approaching an intersection is to take reasonable care.’ Applying these decisions to the specific circumstances of the collision between Mr Shaw and Mr Menzies, His Honour found that both drivers were negligent for the collision. In attributing liability to Mr Shaw, His Honour noted that Mr Shaw was obligated under the road rules to give way to the vehicle turning left and also failed to observe the warning signs affixed to Mr Menzies’ vehicle and considered that Mr Menzies may have proposed to turn left when seeing the truck slow quite substantially prior to the intersection. Turning to the negligence of Mr Menzies, His Honour found that the 27 years of experience that Mr Menzies had as a truck driver equipped him with the knowledge that his view through the passenger mirror would have diminished as the angle of his left turn increased. As Mr Menzies had seen Mr Shaw’s motorcycle behind him before commencing the turn, His Honour found that Mr Menzies should have appreciated that Mr Shaw was in a vulnerable position and should have kept him under observation or, at least, take extra care when turning. Ultimately, Justice Martin found that the motor cycle rider (Mr Shaw) bore the greater responsibility for the collision and measured his negligence at 70% and that of the truck driver (Mr Menzies) at 30%.
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The Obligations of Motorists when Confronted with Turning Heavy Vehicles by Peter Banco & Paul Angus
Implications Quite often, insurers, when dealing with claims concerning turning heavy vehicles, place liability at the feet of the regular motorist for positioning their smaller vehicle in such a location whereby the collision occurs. However, the defence has always been available that despite being the larger and less mobile vehicle, the heavy vehicle driver must have due regard to other motorists and conduct any manoeuvre such as turning from the middle lane with great care. The decision of Justice Martin confirms the earlier decision of Sibley v Kais that a driver’s negligence is not measured strictly by their compliance with the road rules but rather what is reasonable in the circumstances. Even though a driver’s conduct is strictly allowable under the applicable road rules, the driver must appreciate the possibility that other motorists may act contrary to the very same rules. Should a driver fail to consider this possibility and assumes that other motorists will conform to a certain level of driver behaviour as expected under the road rules, then that driver may be found negligent. Whilst the decision of a single Judge of the Queensland Supreme Court will be binding on all lower Courts in Queensland, the reasoning of Justice Martin could reasonably be relied upon in New South Wales given the similarity of the road rules in both jurisdictions. Looking farther afield, the decision of Justice Martin confirms a long-established view in the underlying law that when determining liability the full circumstances of the collision should be considered. It is often when the wider facts of a collision are contemplated that a Court will find sufficient grounds for a finding of contributory negligence and this is often overlooked when insurers seek to rely on a strict application of the road rules to determine a particular settlement.
For more information, please contact: Peter Banco
Paul Angus
Lawyer T: 02 8257 5756 peter.banco@turkslegal.com.au
Partner T: 02 8257 5780 paul.angus@turkslegal.com.au
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