Australia: The unavoidable accident – Causation in the WA CTP Motor Vehicle Scheme

Last Updated: 2 February 2017
Article by Stephen Williams

This paper is co-authored by Daniel Coster, Lawyer

The WA Court of Appeal recently handed down its decision in Proudlove v Burridge [2017] WASCA 6, an appeal by the injured party against the District Court's dismissal of his claim for damages, arising from a serious motor vehicle accident.

This case was also likely to have been influential in the State Government's decision to introduce the Motor Vehicle (Catastrophic Injuries) Act 2016 (WA) creating a no-fault scheme for the care of the injured in motor vehicle accidents involving catastrophic personal injuries.


On the night of 15 July 2011 he was a passenger in a vehicle driven by his friend (the insured party), travelling South on Albany Highway, at about 110km/h (the posted speed limit) with the vehicle's headlights on high beam.

A little while earlier, Ms Tremayne had passed the same stretch of road and noticed two escaped horses on the road. She pulled onto the verge with her headlights on low beam and her hazard lights on, and attempted to herd the horses away from the road.

She then noticed the approaching headlights of the insured's vehicle, removed her black jacket to reveal her white long-sleeved shirt, and walked towards the approaching headlights, waving her arms above her head.

The insured did not see her, her vehicle, or the horses. He drove past, collided with one of the horses, mounted the embankment and crashed into a tree.

The injured party suffered catastrophic personal injuries. This occurred prior to the 'no-fault' catastrophic scheme coming into force, so he was required to establish negligence against his friend, the insured party.

District Court

In the District Court Keen DCJ held that the insured owed a duty of care (and had breached that duty), but went on to state that, despite this, the injured party had failed to establish causation in relation to the injuries sustained because on the available evidence, a reasonable person driving with due care and attention and responding appropriately to Ms Tremayne's warning, would not have been able to avoid the collision.

Court of Appeal

The injured party appealed submitting that Keen DCJ erred:

  1. By failing to find that the insured ought to have braked firmly when Ms Tremayne first became visible.
  2. By finding that causation had not been established, on the basis that the evidence supported a finding that a reasonable driver keeping a proper lookout would have seen Ms Tremayne in time to brake or stop before the horses.
  3. By failing to find that Ms Tremayne would have been visible from about 165m away, that she was at least 65m north of the collision point, and that a reasonable driver travelling at 110km/h would have been able to stop within 185m of something becoming visible given a reasonable reaction time of about two seconds.
  4. Alternatively to 3, by failing to find that firm braking would have allowed a reasonable driver to stop or swerve and avoid a collision.
  5. By wrongly finding that she would have only been visible at some indeterminate point within 143m.
  6. By wrongly accepting expert opinion evidence and giving weight to hearsay evidence about articles which were not tendered.
  7. By assessing causation with reference to the actions of the insured rather than by reference to a reasonable person.

The insured cross-appealed, alleging error in Keen DCJ's finding that he ought to have seen Ms Tremayne.

The Court of Appeal, in a 2-1 majority, dismissed the appeal (and the cross-appeal), upholding Keen DCJ's finding that the insured's negligence did not cause or contribute to the collision and the injured party's subsequent injuries (i.e. the collision was unavoidable).

Their Honours noted that appeals on questions of fact required appellants to demonstrate the findings of fact were wrong by 'incontrovertible facts or uncontested testimony' or were 'glaringly improbable' or 'contrary to compelling inferences'. They went on to observe that the evidence did not support a finding that Keen DCJ erred in his findings of fact or law. In particular, they accepted that 143m was the maximum distance at which Ms Tremayne would have been visible to a reasonable person in the position of the insured (there having been much expert evidence on this issue). They considered that the critical question in relation to causation was whether a hypothetical reasonable person in the position of the insured, keeping a proper lookout and reacting appropriately to seeing Ms Tremayne, would have avoided the collision. On the basis of the evidence, it was open to Keen DCJ to conclude that a distance of 143m was insufficient to allow a reasonable person to avoid reaching the impact point at speed.

In dissent, Martin CJ considered that, in the absence of further evidence, it was reasonable to infer that the insured's failure to respond to the warnings of a hazard (Ms Tremayne and her vehicle), caused or materially contributed to the insured's collision with the horse. He noted Keen DCJ's findings were that the accident was unavoidable and therefore causation was not made out, and considered this to be 'a startling proposition'. He considered the conclusion to be drawn from this would be that the speed limit on unlit country roads was too high, the lights or brakes of contemporary vehicles needed improving, or that motorists should be warned that they would be unable to avoid a collision if they drove at or within the speed limit at night on an unlit road. He went on to conclude that Keen DCJ's reasoning was flawed and that a reasonable driver ought to have identified Ms Tremayne within sufficient time to avoid the collision.


Whilst this decision has less significance for catastrophic personal injury claims with the introduction of the 'no fault' CTP scheme, it still remains relevant and provides guidance as to how the tests of causation will be applied. It also provides an example of the difficulties in making an assessment of complex expert evidence by the courts.

The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Kott Gunning is a proud member of

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Stephen Williams
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions