Vos v Hawkswell & Anor  QCA 92
Cooper Grace Ward represented the interests of the defendants in this District Court action before Justice Searles in Toowoomba last year.
A motor vehicle accident occurred after the plaintiff overtook the defendant’s vehicle at a T intersection and then stopped in the defendant’s path on two occasions before pulling over to the side of the road. The plaintiff again moved into the path of the defendant’s vehicle in an erratic manner, and stopped, resulting in a collision.
At first instance
The trial judge accepted the defendant’s version of events. It was corroborated in material respects by an independent witness who was very forthright in her evidence in chief and did not waiver under cross-examination.
Justice Searles held that, although the defendant should have been aware of the heightened risk of the plaintiff continuing to drive erratically, this was the type of situation where no degree of care by one driver can avoid the consequences of the absence of care of the other.
The plaintiff’s claim was dismissed with costs.
The plaintiff appealed and the matter was heard by Holmes and Muir JJA and Atkinson J on 20 April 2010. Judgment was delivered on 23 April 2010, unanimously dismissing the appeal with costs.
The Court of Appeal held there had been no errors of fact or law on the part of the trial judge. The Court agreed that the plaintiff, having deliberately or recklessly created a dangerous situation that gave rise to a distinct risk of an accident of the kind that in fact occurred, cannot expect the defendant’s conduct to be assessed according to the most exacting of standards.
Faced with such a situation, a person may well react in a way which, with the advantage of hindsight, may appear less than optimal. That would not, of itself, establish negligence. Negligence would be found only if such person failed to act reasonably in the emergency created by the other’s wrongdoing.
Misjudgment does not equate with negligence. In this case, there was not even misjudgment on the part of the defendant.
The judgment clarifies the “special relationship” between the “leading car” and “following car” as discussed by Dunn J in Rains v Frost Enterprises Pty Ltd. It was held, by the Court of Appeal that there is no principle of law that the driver of the following car is inevitably liable should his vehicle collide with the vehicle in front. Liability must be determined by reference to the particular facts of each case.