Court of Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Collins v Insurance Australia Ltd [2022] NSWCA 135 Hearing dates: 15 June 2022 Date of orders: 2 August 2022 Decision date: 02 August 2022 Before: Meagher JA at [1];
Kirk JA at [2];
Basten AJA at [43]Decision: (1) Set aside the judgment and orders 1 and 2 made in the District Court on 2 August 2021.
(2) In place thereof,
(a) Give judgment for the plaintiff against the defendant in an amount of $200,000.
(b) Direct that the judgment take effect on 2 August 2021.
(c) Order that the defendant pay the plaintiff’s costs of the trial.
(3) Order that the respondent pay the appellant’s costs in this Court.
Catchwords: INSURANCE – motor vehicle – compulsory third-party insurance – collision causing stationary traffic on highway – driver injured avoiding stationary traffic – whether stationary traffic a “situation” – whether original collision caused “dangerous situation” –Motor Accidents Compensation Act 1999 (NSW), s 3A(1)(d)
NEGLIGENCE – duty of care – scope of duty – whether negligent driver owed duty of care to road users not involved in collision – injury to second driver distant in time and place from original collision
NEGLIGENCE – breach – whether risk “not insignificant” – levels of risk – error to focus on precise mechanism by which harm occurs
NEGLIGENCE – defences – contributory negligence – speed not excessive – no failure to keep lookout – driver injured in avoiding stationary cars on highway – whether contributorily negligent
Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5R
Interpretation Act 1987 (NSW), s 33
Motor Accidents Amendment Act 1995 (NSW)
Motor Accidents Compensation Act 1999 (NSW) ss 3, 3A, 5, 6, 113
Motor Accidents Compensation Amendment Act 2006 (NSW), Sch 1[3]
Motor Accidents Compensation Amendment Act 2010 (NSW)
Road Rules 2014 (NSW), r 126
Cases Cited: Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568; [2005] HCA 26
Benic v State of New South Wales [2010] NSWSC 1039
Bunnings Group Ltd v Giudice [2018] NSWCA 144; (2018) Aust Torts Rep 82-402
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA 13
Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258
Chapman v Hearse (1961) 106 CLR 112; [1961] HCA 46
Czatyrko v Edith Cowan University (2005) 214 ALR 349; [2005] HCA 14
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12
Harriton v Stephens (2006) 226 CLR 52; [2006] HCA 15
Imbree v McNeilly (2008) 236 CLR 510; [2008] HCA 40
Kozarov v Victoria (2022) 96 ALJR 405; [2022] HCA 12
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011]…
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- Case
- [2022] NSWCA 135
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine two primary legal issues. Firstly, whether the stationary traffic on the highway constituted a "situation" within the meaning of section 3A(1)(d) of the Motor Accidents Compensation Act 1999 (NSW), and if so, whether that situation was caused by the original collision in a manner that rendered the original collision the cause of Ms Collins' injuries. Secondly, the Court had to consider whether the driver of the insured vehicle owed a duty of care to road users, such as Ms Collins, who were injured at a later time and a different location as a consequence of the initial collision, and if so, whether that duty had been breached. The Court also considered the defence of contributory negligence.
The Court of Appeal found that the original collision had created a dangerous situation on the highway, and that the stationary traffic was a direct consequence of that situation. The Court held that the driver of the insured vehicle owed a duty of care to other road users, including Ms Collins, to avoid creating such a dangerous situation. The Court determined that the risk of harm to other road users was "not insignificant" and that the driver had breached this duty of care. The Court also found that Ms Collins was not contributorily negligent. Accordingly, the Court of Appeal set aside the judgment of the District Court and entered judgment for the plaintiff against the defendant in the sum of $200,000, with costs.
Orders
Orders of the court
(1) Set aside the judgment and orders 1 and 2 made in the District Court on 2 August 2021.
(2) In place thereof,
(a) Give judgment for the plaintiff against the defendant in an amount of $200,000.
(b) Direct that the judgment take effect on 2 August 2021.
(c) Order that the defendant pay the plaintiff’s costs of the trial.
(3) Order that the respondent pay the appellant’s costs in this Court.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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