Liability in Motor Vehicle Accidents is not an exact science. What is the process behind court judgements?
- 07 Jun 2023
In the case of Derrick v Cheung  HCA 48, the High Court of Australia examined the standard of care for motorists in negligence cases. The appeal was brought by Rosalie Derrick, the appellant, against Wah Ye Rosannie Cheung, the respondent, who was sued for injuries caused to an infant who ran into the path of her vehicle. The trial judge found that the respondent's speed, though within the legal limit, was excessive and constituted negligence. The Court of Appeal affirmed this decision.
However, the High Court allowed the appeal, stating that there was no basis for finding negligence on the part of the respondent. The primary judge's conclusion that a slower speed would have prevented the collision was considered speculative and not sufficient to establish negligence. The majority in the Court of Appeal erred in holding that driving at a reasonable speed could still be a breach of duty to other road users.
The court emphasized that determining negligence requires value judgments and taking into account the surrounding circumstances. The respondent was driving at a modest speed, keeping an appropriate distance from other vehicles and maintaining a proper lookout. There was no specific danger or perceivable risk that she failed to consider. The court also noted that the incident did not occur near a school or bus stop where special caution might be required.
Ultimately, the High Court found that the trial judge and the majority in the Court of Appeal erred in their assessment of negligence. There was no evidence to support a finding of negligence on the part of the respondent. The tragic nature of the incident did not relieve the court of its obligation to apply the law correctly.
This was a tragic case involving a young child who suddenly ran out in front of a car in Chatswood in Sydney.
In the end, the High Court held the driver wasn’t liable even though, if she had been going slower, the accident may well have been avoided.
This is significant because the decision acknowledges the practical reality that life in our major cities would come to a standstill if every driver drove in such a way as to be able to stop in time to avoid every conceivable hazard.
I had occasion to rely on this case recently for a client who sustained serious injury when, whilst riding his motorbike up a hill, he ran into a low loader that was completely blocking the road just over the crest. The Defendant alleged the accident was 20% our client’s fault for failing to slow down as he reached the crest just in case there was a hazard on the other side.
Our argument was that, as the defendant’s own expert conceded if our client was traveling at the speed limit the accident was unavoidable, and there could be no contributory negligence when all the evidence suggested that he was traveling no faster than the speed limit of 60 kilometres per hour.
We relied on Derrick v Cheung to argue that the law does not require drivers to travel at such a speed as to be able to stop in time to avoid any and every possible hazard including low loaders completely blocking the road just over a crest on the road.