Many of us as drivers like to believe that if we are involved in an accident as a result of someone else entering an intersection without stopping at a stop sign or give way sign, the law is on our side. It is important to note that this is not strictly the case. Case law tells us that even if the other driver breaks the law, we may find ourselves, even if just in part, liable for the accident.
Motorists should be aware of the potential for liability and what is required of us to satisfy the fault. A review of the recent decision of Schimkev Clements v Suncorp Metway Insurance Limited and a general discussion of driver obligations is important to put us squarely in the picture of responsibility.
In that case two drivers in opposite directions were approaching a single lane bridge one party approaching the bridge had a give way sign the other party approaching the bridge was travelling in excess of the speed limit. The driver faced with the give way sign past straight through it without stopping and entered the single lane bridge before the other vehicle reached it. At the trial the speeding driver stated his belief that the other vehicle would stop at the give way sign and therefore believed it would be safe to enter the bridge.
Upon seeing the “give way” car enter the bridge the speeding vehicle applied his breaks causing a trailer he was dragging to jack knife across the breadth of the bridge which the “give way” driver collided with, causing his death.
In this decision the Judge stated that the “give way” driver had seen the speeding vehicle approaching the bridge and believing that he would reach the bridge first elected to drive through the give way sign without stopping and as such was negligent in not stopping at the give way sign. The Court however did condemn the driving of the speeding driver, in quoting the decision of Sibley v Kais for the speeding drivers excessive speed and lack of control of his vehicle in entering a fairly dangerous situation.
The Court in its decision found contributor negligence on both drivers part and apportioned the damage and liability as 35% to the speeding vehicle and 65% to the give way driver.
Schimkev is a specific example of the downfall that results from assuming a car will give way at a give way sign, but long established principals go even further to requiring motorist to ensure all care is taken on the roads.
A High Court of Australia Decision of Sibley v Kais defined what is required to satisfy ‘reasonable care’ each driver must display when approaching an intersection:
“What amounts to “reasonable care” is, of course, a question of fact to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact should he find another vehicle approaching from his right or from his left in such a fashion that, both vehicle continue, a collision may reasonably be expected.”
This means that regardless of signage at an intersection it is a requirement of all drivers approaching any intersection, to take reasonable care and control their vehicle in such a way that even if another driver disobeys a traffic sign they are capable of bringing their vehicle to a halt or steering it in such a manner as to avoid the collision.
This tells us as motorists that simply hiding behind the shield of “But they ran the red light!” or “They failed to give way!” is absolutely not a total defence in the event of an accident.
As noted from the case of Schimkev courts can apportion 35% and upwards of liability for an accident to driver who does not control his vehicle in a way that ensures he is ready for anything from other motorists.
This principal has serious implications for each motorist and their insurance, keeping in mind that your insurer will be forced to wear a percentage of the damages in the event you are found to be in part liable and this can have very serious consequences for your premiums, as well as overheads for the insurers.
We must let go of the assumption “That everyone is going to obey all road rules, driving carefully at all times”, only to be disappointed when they don’t. Rather we must always “assume that all drivers WILL break the rules, run red lights, cruise through a give way sign and thrash their machines to beat the yellow light”, and simply be grateful when they don’t.
It is important to keep in mind that every time we get behind the wheel of a car, we take control of a 1 tonne wrecking ball and it is our responsibility to ensure we are in full control of that tonne of steel and combustion and be ready for any and all eventualities on the road.
For further information contact our Litigation team on 07 3232 5700 or firstname.lastname@example.org