DUA (Driving Under Assumption) proves costly

27 September 2012 Topics: Insurance

A recent ruling by the New South Wales Court of Appeal in O’Neill v Liddle has confirmed that a driver’s failure to keep a proper lookout is legally significant, even where the other driver fails to comply with the road rules.

Accident circumstances

The driver of the first car, Liddle, paused briefly, then drove through a ‘give way’ sign into an intersection. She did not see O’Neill’s car approaching from an adjacent street because of glare from the sun.

O’Neill acknowledged that she had seen Liddle but assumed that she would stop at the ‘give way’ sign. Acting on this assumption, O’Neill continued through the intersection and the two cars collided. Liddle’s car rolled and her arm was crushed. Liddle sued O’Neill for her injuries.

The trial judge assessed Liddle’s liability for the accident at 55%. O’Neill appealed, arguing that the trial judge had not given enough weight to Liddle’s failure to take reasonable care, and that Liddle’s liability should be assessed at 75%.

Court of Appeal’s decision and reasoning

The Court of Appeal confirmed the trial judge’s decision on liability. If O’Neill had kept a proper lookout, she would have had time to avoid the collision through a minor change in her speed and direction. Liddle had taken a calculated risk in entering the intersection without full view of the adjacent street and so had contributed to the collision.

The Court of Appeal applied the principles set out by the High Court in Sibley v Kais, that:

  1. one driver’s breach of the road rules is not conclusive of their liability in negligence
  2. drivers cannot act under the assumption that other drivers will exercise reasonable care
  3. drivers must keep a proper lookout so that they are in a position to react to any contingencies, no matter how unlikely they are.

This ruling emphasises the high standard of care expected of all drivers. Failure to take reasonable care will always have consequences, and the law does not permit motorists to operate on the assumption that everyone else will follow the rules.

The New South Wales Court of Appeal judgment can be found here.

For further information on this topic, please contact Lana Head from our insurance team on +61 7 3231 2413.



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