Cooper Grace Ward represented the interests of the defendants in
this District Court action before Justice Searles in Toowoomba last
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
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
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
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.
Cooper Grace Ward was named Best Australian Law Firm in the BRW
Client Choice Awards 2010 - Revenue < $50m. Joint Best
Australian Law Firm in the BRW Client Choice Awards 2009 - Revenue
The firm has also been named as the fastest growing law firm in
Australia for 2009 by The Australian.
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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