Waterfall v Antony [2012] VSC 458 Joanne Hemmings & Richard Wang | May 2013 | General Insurance
The Victorian Supreme Court has considered the issues of negligence in motor vehicle collisions involving turning and overtaking vehicles when faced with conflicting versions of events. The decision emphasizes that the mere fact that the one party may be performing an unexpected, or even illegal, manoeuver does not obviate the need of the other party to ensure it continues to undertake all appropriate steps whilst driving.
Who does this impact? Insurers and claims officers dealing with motor vehicle claims.
What action should be taken?
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Overtaking a turning vehicle – where does the blame lie?
Insurers should not automatically discount the potential liability of a driver simply because the other driver was undertaking an illegal manoeuver at the time of the collision. Liability of all parties involved must be considered in a logical and complete manner.
Facts John Waterfall sustained damage to his motorcycle and suffered injury as a consequence of a collision between the motorcycle he was riding and a vehicle driven by Stuart Antony on 14 November 2008, on the Eyre Highway, Madura Pass, Western Australia. Both parties were travelling westbound immediately prior to the collision. Antony was towing a caravan westbound and attempting to make a right hand turn off the Eyre Highway, when Waterfall attempted to overtake Antony on his motor cycle. Impact then occurred between the motorcycle of Waterfall and the front driver’s side corner of Antony’s vehicle with damage evident from halfway along the front quarter panel on the driver’s side to the very front of Antony’s vehicle. Waterfall brought proceedings against Antony in the Victorian Supreme Court for the physical injuries he sustained as a consequence of the collision. The substantive law of Western Australia applied, although the decision was substantially based on common law principles. Waterfall claimed that it was Antony’s negligence which caused the collision. Antony denied this to be the case but stated in the alternative that if he was negligent, Waterfall contributed to that negligence by his own
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actions and any damages awarded should be reduced proportionately.
(e)
Decision
Based on these findings of facts it was the court’s determination that Antony had been negligent because he had:
In reaching its decision, the Court was asked to select between the two competing versions as to how the collision occurred. Waterfall’s version was that he was travelling in the left lane of the highway when he then moved into the right lane to overtake. Waterfall alleged that whilst he was performing this maneuver, Antony turned right in front of him without indication. Antony’s version was that he had moved into the right most lane of the highway sometime before he commenced to perform his right hand turn, at which time, having crossed the double continuous lines, Waterfall attempted to overtake from his right hand side. The implication was that Waterfall had either attempted to overtake very near the double continuous lines or had actually crossed those lines in order to overtake. The court decided that both versions were plausible, and as such made findings of fact which constructed a version on the balance of probabilities which lay somewhere between the two versions given by the parties. It was the court’s finding on the facts that: (a) Antony had been ‘lane splitting’ insofar as whilst the majority of his vehicle was in the right lane, a portion of the caravan which he was towing remained in the left lane so as to partially obstruct any attempt to overtake on that side of the highway. (b)
Antony did not look in the mirror prior to commencing his turn.
(c)
Antony had turned his indicators on just immediately prior to the commencement of his turn.
(d) Waterfall had been “lane splitting” in that he had attempted to overtake either very near the double continuous lines or over them.
The impact occurred near the center of the eastbound lane.
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Overtaking a turning vehicle – where does the blame lie? Richard Wang & Joanne Hemmings | May 2013
(a)
failed to commence his right hand turn as near as practicable to the double continuous lines (part of his caravan was in the left lane at the time of his turn);
(b)
failed to operate his indicators sufficiently in advance so as to provide proper warning of his intention to perform a right hand turn;
(c)
failed to look in his mirrors – the court commented that the presence of the double continuous lines did not obviate his need to maintain a proper look out for overtaking vehicles.
However, despite finding Antony to have been negligent, the court also determined that Waterfall had contributed substantially to the injuries he had sustained through his own negligent acts and/or omissions. In arriving at this position the Court focused on its finding that Waterfall, in attempting to overtake, had been ‘lane splitting’ and further that he, as the party seeking to overtake, had the duty to ensure that he was doing so safely. In balancing the respective faults of the parties, the Court came to a determination that, despite the finding of negligence against Antony, Waterfall contributed to the cause of the collision to a greater degree than Antony due to his election to overtake in the manner which he did. In those circumstances the Court assessed him to be 60% at fault and the award of damages was reduced accordingly.
Implications This decision, while based on its facts and not a dramatic restatement of the law, does provide a clear insight into the logical approach taken by the Court in considering issues of negligence in motor vehicle collisions involving turning and overtaking vehicles when faced with conflicting versions of events.
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Overtaking a turning vehicle – where does the blame lie? Richard Wang & Joanne Hemmings | May 2013
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It makes it clear that a Court in dealing with these issues will first look to the negligence of the Defendant, and once that is determined will then consider what part of the injury or loss suffered by the Plaintiff was contributed to by his/her own breach of duty. Of particular interest in this case was that the Court in its decision emphasized that the mere fact that the one party may be performing an unexpected, or even illegal, manoeuver (overtaking over double lines) does not obviate the need of a party essentially performing the correct or legal action to ensure it continues to undertake all appropriate steps whilst driving (such as correct positioning on the roadway, sufficient indication and continuously keeping a proper lookout).
For more information, please contact: Richard Wang Lawyer T: 03 8600 5015 M: 0416 060 457 richard.wang@turkslegal.com.au
Joanne Hemmings Lawyer T: 02 8257 5770 M: 0418 116 170 joanne.hemmings@turkslegal.com.au
www.turkslegal.com.au Syd | Lvl 44, 2 Park St, Sydney NSW 2000 T: 02 8257 5700 | F: 02 9264 5600 Melb | Lvl 10 North Tower, 459 Collins St, VIC 3000 T: 03 8600 5000 | F: 03 8600 5099