Background

On 1 May 2020, the Plaintiff, Mingyu Park, was the passenger of a vehicle operated by the First Defendant, Suwoo Nam, when it collided with a dead cow that was in the middle of the roadway on which the vehicle was travelling. The Second Defendant, Allianz Australia Insurance Limited, was the insurer of the vehicle.

The court noted that there was little factual dispute as to the circumstances of the accident as between the two occupants of the vehicle. Both occupants agreed that whilst travelling along Boonah Fassifern Road, the Plaintiff had noticed the headlights of a vehicle coming in the opposite direction to their vehicle (‘the Eclipse’) swerve momentarily into lane in which their vehicle was travelling, prior to leaving the roadway and landing in a ditch. In dispute was whether the First Defendant asked the Plaintiff whether he was okay after the Eclipse had veered off the road, but before the collision, and whether as a result of this conversation the First Defendant diverted his attention from the road ahead.

Thereafter, the Plaintiff noticed the cow on the road, and brought this to the First Defendant’s attention. Whilst the Plaintiff didn’t perceive a reduction in the speed of the vehicle in which he was travelling, the First Defendant asserted that he immediately applied the brakes upon seeing the cow, but he was unable to slow the vehicle before colliding with the cow.

The Plaintiff alleged that he suffered injuries as a result of the collision, namely: 

a. Cervical, thoracic, and lumbar spine injuries

b. A left knee injury; and

c. Post-traumatic stress disorder.

The Plaintiff further alleged that these injuries arose as a result of the negligence of the First Defendant by virtue of his: –

a. Failure to activate the high beam of the vehicle’s headlights;

b. Travelling at an excessive speed with reference to his ability to perceive the road surface ahead of the vehicle

c. Driving without due care and attention

d. Failure to keep a proper lookout; and

e. Failure to slow his vehicle sufficiently when he perceived another vehicle travelling in the opposite direction was travelling in an erratic manner.

The Defendants denied that the Plaintiff sustained the injuries alleged, as well as that the accident was caused by the negligence of the First Defendant.

Decision

As to the main point of difference between the Plaintiff’s and First Defendant’s accounts of the incident, being whether the First Defendant diverted his attention from the roadway to ask whether the Plaintiff was okay after the Eclipse left the roadway, the court concluded that it was more likely that the conversation had not occurred at that time. In this regard, Sheridan DCJ was seemingly persuaded by the First Defendant’s evidence that there had been no collision at that time, so there was no reason to enquire as to whether the Plaintiff was okay.

Her Honour did not accept that the First Defendant ought to have used the high beam of his headlights prior to the Eclipse crossing over onto the other side of the roadway, as doing so would have created a dangerous situation for oncoming vehicles, such as the Eclipse. As to whether the First Defendant ought to have turned on the high beams after the Eclipse had passed his vehicle, her Honour noted that there was little time prior to the collision with the cow for him to both react to the Eclipse passing in front of him, and then think to turn on the high beam, let alone actually doing so.

With respect to the Plaintiff’s allegation that the First Defendant was travelling at an excessive speed, her Honour noted that it was the evidence of both occupants that the vehicle was travelling well below the speed limit of 100km/h prior to the incident.   

As to the final allegations of negligence, her Honour opined that the events occurred too quickly to enable the First Defendant to react in sufficient time to avoid the cow. Relevantly, her Honour noted that: 
 
A driver is expected to act with reasonable care and skill. This requires the driver to give reasonable attention to all that is happening on and near the roadway that may present a source of danger. The mere fact of a collision is not of itself evidence of negligence. In my view there is no evidence that Mr. Nam derogated from his duty. He acted as an ordinary, prudent person would in the situation that confronted him
 
Accordingly, the court concluded that there was no basis for a finding of negligence against the Defendants, and as such, the Plaintiff’s claim was dismissed.  
 

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