This paper is co-authored by Daniel Coster, Lawyer
The WA Court of Appeal recently handed down its decision in Proudlove v Burridge  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.
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:
- By failing to find that the insured ought to have braked firmly when Ms Tremayne first became visible.
- 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.
- 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.
- Alternatively to 3, by failing to find that firm braking would have allowed a reasonable driver to stop or swerve and avoid a collision.
- By wrongly finding that she would have only been visible at some indeterminate point within 143m.
- By wrongly accepting expert opinion evidence and giving weight to hearsay evidence about articles which were not tendered.
- 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.
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