Lawes v Nominal Defendant[2007] QSC 92

SUPREME COURT OF QUEENSLAND

[1] The plaintiff was injured when the motorcycle he was riding struck a horse. The question is whether the Nominal Defendant is liable to compensate him under the Motor Accident Insurance Act 1994 (“the Act”) statutory policy.

Horse struck

[2] The incident occurred at about 8.40 pm on Friday, 14 March 2003 on the Gympie-Tin Can Bay Road, about 2 kms west of the intersection with the Cooloola coast road. At that place, the road was bitumen-sealed, with one lane for each flow of traffic. These two lanes were separated by a white-painted, broken line. Each lane was about 3.5m wide, measured from the centre line to a parallel white-painted fog line. Beyond this, on each side, a .4m, sealed shoulder abutted a 40-50m stretch of grassy verge that led to the unfenced Toolara State Forest.

[3] In the vicinity of the accident scene, there were no residential, rural or commercial properties for several kilometres in both directions; there was no artificial lighting; and the forest caused the road area to be darkened.

[4] The plaintiff, then aged 21, rode his 500cc motorcycle east from Gympie. Rainbow Beach was his destination. The traffic encountered was light in both directions.

[5] Not long before the collision with the horse, the plaintiff rode up behind a four wheel drive utility. Loaded with wood, the vehicle was travelling at about 90-95 kph. The plaintiff decided to overtake. With no other traffic about, he moved his motorcycle to his right and into the westbound lane.  The road ahead, which was inclined slightly downhill, was straight for a distance of 300-400m. He safely overtook at about 100 km/h  - the speed limit there.

[6] The plaintiff was wearing a helmet with visor retracted. Protective glasses shielded his eyes from the wind. The night was clear.[1] So the impediment to his forward vision was the darkness of the night. The way was lit by the motorcycle headlight, although the plaintiff does not recall whether it was on high or low beam. While and briefly after overtaking, the headlights of the utility augmented the light from the motorcycle.

[7] While, or just after, overtaking the utility, the plaintiff saw, he testified, a “horse lying directly in my path … on the road, its head to my right and the tail to my left …”. He did not notice the animal’s legs. He immediately turned his head to the left to look back to make sure that he was clear of the utility so that he could effect a “push/pull manoeuvre” to take him to the northern side of the road and around the horse. Unfortunately, the plaintiff misjudged the time it would take him to reach the animal and did not slow down. Still travelling at about 100 kph, only “seconds” elapsed between his seeing the horse and striking it.

[8] The plaintiff fell from his motorcycle, probably in the impact itself. He came to rest in a grassy depression near the southern side of the road, unconscious. His memory of events ceases just before the horse was struck.

Testimony of others

[9] Mr Terry Colless was a passenger in the utility, which was driven by a Mr Moore. Mr Colless testified that the plaintiff passed the utility “cruising along …taking his time”. He saw the motorcycle pull in when it was safe to do so. Then, after only “a few seconds”, when the motorcycle was, he estimated, about 100 m ahead, he saw its brake light “come on, and then I saw sparks”. Mr Moore firmly applied the brakes of the utility. As the car skidded on the bitumen, Mr Colless saw a horse “laying (sic) in front of our ute in the eastbound lane”. The vehicle passed to the left of the horse, stopping “a few metres” beyond the animal.

[10] Mr Moore activated the hazard warning lights of his utility and positioned the vehicle so that its headlights shone towards where Mr Colless searched for the plaintiff. Mr Colless heard horses running in “the bush” nearby as he looked for the plaintiff, using light from his mobile phone. Once he discovered the plaintiff, he  used the phone to call an ambulance.

[11] Mr Colless then walked back to the horse. He noticed that it was brown in colour, about one-two years old, and weighed, he estimated, about 400 kg. It was, said Mr Colless, “a brumby …a wild horse”. The animal was warm to his touch.

[12] A police chaplain, Mr Dorman, soon came upon the scene. He had driven west from Tin Can Bay. He noticed Mr Moore’s  utility on the southern side of the road, facing towards him with the headlights on. He stopped and spoke with Mr Colless and Mr Moore, who pointed the horse out to him. Only then did he see it through the darkness. It was in a “dangerous position” straddling the centre line. Mr Dorman thought that the body of the dead brumby was “totally distorted”: the head was thrown back and the spine held in an unnatural alignment. All legs appeared intact. Mr Dorman noticed “drag marks” of horse hair and body fluid on the road, proceeding a short distance from the body of the horse.

[13] Mr Dorman moved his car to the northern side of the road, “facing inwards to illuminate the horse”, and activated his hazard warning lights. Then he put on a reflective vest emblazoned with “Police Chaplain”. While Mr Dorman was standing in the beam of his headlights to warn other motorists of the danger, a vehicle approached, hit the horse, appeared to suffer front end damage, and sped away.

[14] Mr Dorman telephoned the police. He also tried to move the horse but it was too heavy to shift. Later, someone in a four wheel drive vehicle arrived and used a rope to tow the animal from the road.

Brumbies and traffic in the area

[15] The plaintiff had often travelled along the Gympie-Tin Can Bay Road and on to Rainbow Beach. He had seen brumbies grazing beside the Rainbow Beach Road in the Toolara State Forest. Others had noticed brumbies in the area. His mother had seen them “quite regularly”, grazing in the grassy verges beside the Gympie-Tin Can Bay Road. She had also seen some crossing roads. About five times over the years, Mr Colless had seen herds of 10-15 brumbies grazing near the roads through the Toolara State Forest. He had seen some crossing the road. He had never seen a brumby standing still or sitting on a road. Mr Dorman had seen wild horses near the Gympie-Tin Can Bay road – usually to the side but “on rare occasions” crossing it.

[16] The stretch of road where the accident occurred was used regularly by tourists and locals driving cars and other vehicles. Most days, many heavy transport vehicles also passed through that stretch of road: on Friday nights, that use eased markedly.

Horse’s position

[17] It is common ground that the motorcycle struck the horse within a few seconds of overtaking the utility. What is in contest, however, is how the horse was situated when the plaintiff came upon it.

[18] In cross-examination, the plaintiff was pressed with the suggestion that the horse was standing when the collision happened. He is adamant that this was not so. He was also taxed about an account he supplied for the Nominal Defendant about four weeks after the accident, when he wrote:

“I was attempting to over take a 4WD down a slight hill. I was beside the 4WD when we reached the straight then I saw the horse lying across my side of the road.[2] I moved to the centre of the road to avoid the horse as it looked to me as it was getting up, once I realized it was not moving I looked to my left to see if the 4WD had braked so I could swerve to miss the animal. But by the time I realized the 4WD had slowed down and looked ahead to swerve I had hit the horse in the flank at apx 100km/h.

The reason why the horse did not get up is that the right front leg was all but torn off the result of a previous accident. The horse appears to be wild (brumby) apx 2 years old. No warning signs erected to inform of wild horses.”

[19] That account is essentially consistent with his testimony. The second paragraph of the statement does, it is true, assert that the right front leg had been “all but torn off” in a “previous accident”. This assumption is not correct. The legs were intact when Mr Colless and Mr Dorman inspected the animal. That leg became detached either through the subsequent vehicle impact Mr Dorman described or else when the carcass was dragged from the road. However, the plaintiff’s error is understandable. The morning after the accident, his mother photographed the horse. One photograph shows the right front leg torn away. Presumably, the plaintiff had seen this photograph by the time he wrote his version for the Nominal Defendant. The plaintiff did not testify to having observed any injury to the horse.

[20] There is a respect in which the plaintiff’s account to the Nominal Defendant is not accurate. In that statement, he put the horse on the southern side of the road: in describing the animal as being “across my side of the road” when overtaking, and by depicting it in an accompanying sketch as entirely in the westbound lane. Other evidence, especially that of Mr Dorman, discloses that the horse was lying more to the middle of the road when the motorcycle struck it.

[21] Mr Colless’s evidence that the horse was lying on the road when he first saw it was challenged, principally in reliance on a statement given to loss assessors in August 2005 and by things said to Mr Hefferan, the Nominal Defendant’s solicitor, a few days before the trial began.

[22] The statement to the assessors asserts Mr Colless’s “belief that the motor cycle rider hit the horse whilst it was standing up on the road”. That view was not based on having seen the horse standing. Rather, the statement records that Mr Colless was of that opinion because of marks he saw on the horse and speculation that, if the plaintiff had hit the horse when it was lying down, “the bike would have jumped up over it but I didn’t see it fly up in the air”.

[23] Mr Colless testified that he did not pay much attention to the statement when signing it.

[24] In a telephone conversation on 27 February this year, Mr Colless twice told Mr Hefferan that he saw the horse standing up. Mr Colless testified that he could not remember having told Mr Hefferan that he had seen the horse standing. In testifying, he also said that he had not seen the horse standing.

[25] Mr Colless furnished a written statement in October 2004 in which he gave this account:

“6.There was a motorcycle riding behind us for a long time. When we came to a straight but (sic) of road the motorcycle rider took us over. He didn't speed past as most motorcycles do but rather cruised passed. …

…

8.The motorbike rider had just overtaken us and was sitting easy in the left lane now in front of us. It would have been about 30 seconds later we saw the brakes of the motorcycle come on. We then saw sparks on the ground.

9.Almost instantly we put our brakes on and swerved left to miss a horse in the middle of the left lane. The vehicle we were travelling in started skidding.

10.We did not see the horse until the last minute.

…

24.I have been travelling this road since I was very young and brumbies have always been a problem ever since I can remember. When one brumby crosses the road the rest of them always follow. Cars hit them all the time. This was an unfortunate accident. …”

[26] In neither written statement did Mr Colless suggest that he had seen the horse before the motorcycle struck it. So nothing in them is inconsistent either with the plaintiff’s evidence that the horse was lying down before the motorcycle hit it or with Mr Colless’s testimony that the horse was lying on the road when he first saw it.

[27] When he spoke to Mr Colless, Mr Hefferan had the assessors’ statement in which, unhelpfully, Mr Colless had speculated about the positioning of the horse. Mr Colless did tell him that he had seen the horse “standing”. He did so, it seems, resenting Mr Hefferan’s call.[3] It does Mr Colless no credit that he responded to Mr Hefferan in that misleading fashion, no matter how annoyed he was. Still, in the circumstances, his misbehaviour is not a good reason to doubt Mr Colless’s evidence that the horse was lying down.

[28] The plaintiff impressed me as an honest, essentially reliable, witness.

[29] All considered, the evidence establishes that the horse, seriously injured or dead,[4] was lying on the road when the plaintiff noticed it.

Unidentified vehicle?

[30] How, then, did the horse come to be there? Had it, as the plaintiff contends, been hit by a car or truck?

[31] That the horse was found lying in the middle of the road[5] points in that direction. Such evidence as there is about the habits of brumbies indicates that the horse would not have chosen to lie down on the bitumen road, even though at night it was lightly trafficked. Still, as the Nominal Defendant’s case emphasises, the evidence has not identified an earlier injury to the animal; no driver had stopped to warn road users; and the horse could have died through other mishap: as examples, through snake bite or from slipping and falling. In other words, a misfortune other than being struck by a vehicle might account for the presence of a young, otherwise apparently healthy, wild horse lying on the road.

[32] But there is a much more likely explanation: more probably than not, the horse was lying on the road because of a recent collision with an unidentified motor vehicle.

Did the driver realize what had happened?

[33] No one stopped after such an impact or contacted the police to warn of the danger – things to have been expected of a conscientious driver who struck the animal and realized what had happened. These omissions might be thought to suggest that the driver was unaware of the impact. But, given the size of the horse, the chances that it struck a part of the car or truck where the impact would not have been detected are slim.

[34] The driver will have appreciated that his vehicle had collided with a large animal at a speed calculated to disable it.[6]

Negligent driving?

[35] Against that background, the plaintiff contends that his injuries were caused by the negligence of the driver on two bases: in colliding with the animal, thereby creating the kind of risk which materialized when the plaintiff ran into the carcass; and, being aware of the initial impact and its likely consequences for other road users, in failing to stop to warn of the danger by, for example, using lights of his vehicle to illuminate the animal and by activating the hazard warning lights, as Mr Dorman had done.[7]

[36] One consideration supports the notion that, in colliding with the horse, the motorist departed from the standard of care reasonably to have been expected in the interests of other road users: that he fled the scene, and is not shown to have warned anyone of the danger, even anonymously.[8]  But consciousness of fault is by no means the only explanation for the flight and omission to warn the police. The motorist may simply have been in a hurry or else indifferent to the hazard.[9]

[37] The collision between vehicle and horse could readily have happened without breach of duty to road users.

[38] The night was dark. The horse was brown. Brumbies are swift. This unfortunate animal could well have rushed in front of a car or truck. The collision might not practicably have been avoided by a driver moving at a suitable speed who also kept a proper lookout. There are accidents that are no one’s fault. Hitting the horse could easily have been one of them.

[39] In the circumstances, the plaintiff has not shown that it is more probable than not that the impact between horse and vehicle resulted from negligence.

Negligent failure to warn

[40] On this basis, without fault, the driver created the danger posed by the presence of the prone horse on the road. Such initially blameless circumstances, however, do attract a duty to exercise reasonable care to prevent the hazard’s harming road users.[10]

[41] The interval between the initial impact with the horse and the plaintiff’s arrival on the scene was, it may be comfortably inferred, long enough for the driver to have positioned his vehicle so that its lights illuminated the carcass and otherwise to warn of the hazard: for example, by turning on the vehicle’s warning lights.[11] There is no reason to suppose that the driver fled to find help. In any event, in view of the considerable distance to anyone living or working in the vicinity[12] and the high risk that another road user would collide with the horse before a removalist arrived, in the prevailing circumstances, the exercise of reasonable care required the driver to stay and warn.

Breach of duty causes injuries

[42] The plaintiff did not slow down after he saw the horse. But had the steps mentioned been taken by the driver, the earlier, clear warning of the presence of the horse that those precautions would have afforded the plaintiff would, more probably than not, have avoided his collision with the animal.

[43] The driver’s negligence caused the plaintiff’s injuries.

Contributory negligence

[44] The plaintiff’s failure to slow down when he saw the horse was more than a mere error of judgment on the spur of the moment. What confronted him was such an obvious danger that, acting reasonably in the interests of his own safety, he should promptly have decreased his speed considerably, which would have enabled him to pass around the horse safely. There was no reason not to do this: it is not suggested that his motorcycle was so close to Mr Moore’s car when he first saw the horse that slowing down suddenly would have put him at risk of being struck from behind.

[45] However, by far the greater proportion of responsibility for the injuries must be borne by the driver. His vehicle was the instrument by which the danger was created. More importantly, that driver had ample time, as well no doubt as the means at hand, to adopt suitable precautions which had every prospect of obviating the risk that eventuated.

Apportionment

[46] Having regard to the respective degrees of responsibility for the harm that befell the plaintiff, it is just and equitable that the apportionment of liability be 80:20 in the plaintiff’s favour.

Does the statutory policy apply?

[47] By s 33(1) of the Act,

“The Nominal Defendant's liability for personal injury caused by, through or in connection with a motor vehicle is the same as if the Nominal Defendant had been, when the motor vehicle accident happened, the insurer under a CTP insurance policy under this Act for the motor vehicle.”

[48] Relevantly for present purposes, the peril insured against under the statutory policy is “liability for personal injury to which the” Act “applies” that is “caused by, through or in connection with” a “motor vehicle”.[13]

[49] By s 5(1) of the Act,

“This Act applies to personal injury caused by, through or in connection with a motor vehicle if, and only if, the injury -

(a)is a result of -

(i)the driving of the motor vehicle; or

(ii)a collision, or action taken to avoid a collision, with the motor vehicle; or

(iii)the motor vehicle running out of control; or

(iv)a defect in the motor vehicle causing loss of control of the vehicle while it is being driven; and

(b)   is caused, wholly or partly, by a wrongful act or omission in respect of the motor vehicle by a person other than the injured person.”

[50] The Nominal Defendant accepts that, if the horse was lying on the road because it had been struck by an unidentified vehicle, the plaintiff’s injuries were “caused by, through or in connection with” that vehicle. The Nominal Defendant contends, however, that the circumstances do not engage the statutory policy, for two reasons: that “the injury” was not “a result of…the driving” of that car or truck;[14] and that the pertinent “wrongful … omission” – the driver’s failure to remain at the scene and warn – was not “in respect of the motor vehicle” within the meaning of that expression in s 5(1)(b).

Relationship between injury and “the driving”

[51] “The driving” in s 5(1)(a) is a reference to the actual operation of the vehicle in question while in locomotion.[15] That “driving” immediately disabled the horse, leaving it prone in the middle of the road. The animal’s presence there contributed, directly and substantially, to the injuries the plaintiff sustained when his motorcycle hit the horse. This is the factual setting in which the question arises whether those injuries were “a result of the driving” of the vehicle within s 5(1)(a)(i).

[52] Unlike legislation elsewhere with similar objects, the Act does not stipulate that the injury must not only be “a result” of but also “caused during” “the driving”.[16] Nor is there a stated requirement that the injuries be the outcome or else a direct consequence of the driving.[17] The prescribed connection between injury and driving is only that the former be “a result” of the latter. This language suggests that no immediate connection between injury and driving is necessary.[18] The case for the Nominal Defendant did not identify any countervailing consideration.

[53] In this statutory context, the causal link between the operation of the unidentified vehicle and the injuries sustained through the collision between motorcycle and horse is sufficiently close, or proximate,[19] that those injuries should appropriately be regarded as “a result” of that “driving”.

“Injury … caused … by a wrongful … omission in respect of the motor vehicle”

[54] In Technical Products Pty Ltd v State Government Insurance Office (Qld),[20] speaking of a differently expressed precursor to s 5(1)(b), Brennan, Deane and Gaudron JJ said:[21]

“The words “in respect of” have a very wide meaning. Indeed, they have a chameleon-like quality in that they commonly reflect the context in which they appear. The nexus between legal liability and motor vehicle which their use introduces in s 3(1) is a broad one which is not susceptible of precise definition. That nexus will not, however, exist unless there be some discernible and rational link between the basis of legal liability and the particular motor vehicle. The point is well made in the judgment of Connolly J. … in the present case …:

‘If the liability of the respondent in this case is to be described as being in respect of the trailer, there must, in my opinion, be more than the mere presence of the trailer at the scene. … it is not sufficient, in order to satisfy the requirement that the person entitled to the benefit of the cover be “legally liable ... in respect of such motor vehicle”, that there be no more than a connexion or relation in time or sequence between the motor vehicle and events which in law give rise to the liability. What is required is that there be a relationship between the motor vehicle and the very act or omission which gives rise to that liability.’”

[55] That approach is to be applied to the interpretation of s 5(1)(b).[22]

[56] The Nominal Defendant contends that there is no discernible and rational link between the vehicle and either the driver’s flight or the consequential failure to employ the vehicle essentially as a beacon.

[57] The vehicle was driven away after the horse was struck. This act occasioned the omission that is critical to the driver’s legal liability: that the lights[23] were not deployed to warn of the danger presented by the horse.

[58] That negligent conduct does involve a relationship with the vehicle; and the distinct nature of that link suffices to satisfy the “… in respect of …” requirement of s 5(1)(b),[24] at least unless the Nominal Defendant’s alternative contention concerning the meaning and effect of the provision prevails.

[59] That alternative relies on remarks in Raschke v Suncorp Metway Insurance Limited:[25]

“[37] … it might be argued that, having regard to the history of motor vehicle accident insurance legislation in Queensland and to the context of s 5(1) of the MAIA, the collocation of s 5(1)(b) with s 5(1)(a) has the effect, that when s 5(1)(b) speaks of a wrongful act or omission “in respect of the motor vehicle”, it is speaking of a wrongful act or omission in respect of those matters concerning the motor vehicle referred to in s 5(1)(a). In other words, so the argument might go, the wrongful act or omission referred to in s 5(1)(b) must relate directly to one or more of the matters referred to in s 5(1)(a)(i) - (iv) of the MAIA.”

[60] Is that argument correct?

[61] For the most part,[26] s 5(1)(a) focuses on the relationship between injury and actual operation and control of the vehicle. Section 5(1)(b) adds the additional limitation on the reach of the statutory cover that the injury must also be caused by another’s unlawful conduct “in respect of the motor vehicle”. But s 5(1)(b) does not, in terms at any rate, confine the indemnity to liability arising from tortious conduct that has a relationship with some particular use, function or condition of the vehicle. 

[62] It is not suggested that a second reading speech or other extrinsic material evinces an anxiety to exclude claims like the present.  No other section of the Act[27] that would  conform with the alternative contention was identified. Nor did the Nominal Defendant propose an object or purpose apparent on a consideration of the statute as a whole tending to sustain it.[28] And had the s 5(1)(a) restrictions been intended to be restated in s 5(1)(b), that could readily have been achieved by express words.[29] 

[63] The alternative contention therefore fails.[30]

Disposition

[64] The plaintiff is entitled to 80 per cent of the agreed damages.