Publish date: 11 November 2022
Hugh Powell

As the Christmas holidays near, the streets of many coastal towns will soon see an influx of holidaymakers looking to soak up the sun at our beautiful beaches. Inevitably, traffic builds up and streets become congested to the point where traffic is queued through intersections and beyond.  In that setting, imagine a car travels through a green traffic light but becomes stuck in the middle of the intersection due to the queued traffic. The lights change. Another vehicle who now has a green light and right of way drives through the intersection and collides with the queued vehicle causing injuries to both drivers.  

Who caused the accident? The first car by blocking the intersection? Or the second car by failing to avoid the queued traffic despite having the right of way? Is the second driver entitled to simply assume that all others will comply with the road rules at all times? 

In Queensland, the road rules are set out in the Transport Operations (Road Use Management – Road Rules) Regulation 2009, which covers how Queenslanders should drive in a safe manner on a day-to-day basis – from how to safely perform a U-turn to how to parallel park safely.  

Many cases over the years have considered the liability of drivers who have failed to comply with the road rules. The principal case being Sibley v Kais (1967) 118 CLR 424. In Sibley, the Plaintiff looked to the right before entering an intersection and being struck by an oncoming vehicle from their left. The Plaintiff argued that the Defendant breached the “right hand rule” (that at unprotected intersections vehicles must give way to the right) and should be held liable on that basis. While undoubtedly a relevant factor, the High Court held that a breach of the right hand rule (or indeed other road rules generally) does not determine who caused an accident. The paramount consideration is whether the driver acted reasonably in all the circumstances. This means that drivers must not simply assume that other drivers will drive according to the road rules. 

When two vehicles are entering an intersection, they are both obligated to take reasonable care and remain vigilant. In some situations, this may extend to anticipating the negligence of others or even irrational behaviour by pedestrians. For example, in Manley v Alexander (2005) 223 ALR 228, a driver was found to be negligent after impacting with a pedestrian lying on a roadway at 4:00 am. There, the High Court found that had the driver been paying attention to all that was happening on or near the road they would have see the pedestrian and avoided the impact.  

However, there are limits to what a driver has to do to avoid liability when others are acting unpredictably. It will often depend on whether the driver has any reasonable opportunity to take steps to avoid the accident from occurring. More recently, in Lim v Cho [2018] NSWCA 145, a driver was found not to be liable when their passenger leapt from the moving vehicle and suffered catastrophic injuries.  

Ultimately, these types of cases are very fact dependent. There is often no clear answer and no consistent recollection of the accident by witnesses. In most instances, even where claims succeed, there is usually an accompanying reduction for contributory negligence to reflect the injured driver’s relative contribution to the accident.  

What is clear is that drivers are not entitled to simply assume others will drive safely – they must remain vigilant and if they anticipate danger, they must respond to it.  

As published in Lawyers Weekly 

Hugh Powell
Hugh Powell
Partner & Sunshine Coast Leader
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