Motor Vehicle Accidents & Injury Claims

Motor Vehicle Accidents – What is negligence?

Negligence is doing or not doing something that a reasonable person would or would not do and which causes another person damage, injury or loss. In South Australia the Civil Liability Act 1936 (SA) is the relevant legislation.

How is negligence determined?

Whether or not negligence is proved involves satisfying four questions:

1. Did the respondent (person being sued) owe the applicant (injured person) a duty of care?
2. Did the respondent breach their duty of care?
3. Did the applicant suffer an injury or other damage?
4. Was the injury or damaged caused as a result of the breach of the duty of care owed by the respondent to the applicant?

There must be a duty of care, a breach of the duty of care, injury or damage occurring and caused by the breach. If one of those criteria is not satisfied, there is no negligence.

What is a duty of care? Civil Liability Act 1936 (SA)

This is a legal obligation to avoid causing harm. It arises where the harm is reasonably foreseeable, if care is not taken. The standard of care required is that of a reasonable person in his or her position who possessed or was aware of all the information necessary at the time, or who ought reasonable to have had at the time of the incident out of which the harm arose – Section 31.

What standard of care is required? Part 6 Civil Liability Act 1936 (SA)

People who have to special skills will be held to the standard required for those persons, by reference to:

1. what could reasonably be expected of a person professing that skill; and
2. the relevant circumstances as at the date of the alleged negligence – Section 40.

Examples of a failure to meet a standard of care can be found in motor vehicle accidents:

1. where a driver fails to keep a lookout and as a result collides with another motor vehicle.
2. where a driver is travelling too close to the car in front and fails to allow an adequate stopping distances between their motor vehicle and the one in front.
3. where a driver fails to give way to the right- the right hand rule – when entering a roundabout or intersection. Sibley v Kais [1967] HCA 43 commented about the duty of a driver to give way to the right, in paragraph 4:

Where …regulations require a driver to give way to a … vehicle, the requirement takes effect when there is a real possibility that, if he proceeded, his vehicle would collide or come into conflict with, or create any other dangerous situation with regard to, that person or vehicle; and, in that event, he is obliged to slow down to such an extent, or, as the circumstances may require, stop and remain stationary for such time, as may be necessary to allow the … vehicle to continue on … its course.”

However, the right hand rule is not the be all and end all in relation to questions of civil responsibility. If the rule were regarded as an absolute criterion some of the results would be ridiculous. The obligation is on every driver no matter from what quarter he enters or is about to enter an intersection, to condition his speed and the handling of his vehicle so as to be able to avoid collision with any other vehicle or vehicles entering. The degree of care will always depend on the circumstances.”

In paragraph 5 the Court also stated:

These regulations in nominating the vehicle which has another on its right as the give way vehicle are undoubtedly salutary and their breach is deservedly marked with criminal penalties. But they are not definitive of the respective duties of the drivers of such vehicles to each other or in respect of themselves … The common-law duty to act reasonably in all the circumstances is paramount. The failure to take reasonable care in given circumstances is not necessarily answered by reliance upon the expected performance by the driver of the give way vehicle of his obligations under the regulations; for there is no general rule that in all circumstances a driver can rely upon the performance by others of their duties, whether derived from [legislation] or from the common law. Whether or not in particular circumstances it is reasonable to act upon the assumption that another will act in some particular way, … [is] a question of fact to be judged in all the particular circumstances of the case.”

In paragraph 6, the Court continued:

… the “right hand rule” is not the be all and the end all in relation to questions of civil responsibility. The obligation of each driver of two vehicles approaching an intersection is to take reasonable care. What amounts to “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 [manner] that, if both vehicles continue, a collision may reasonably be expected.

Motor Vehicle Accidents – What can be claimed?

1. Non-economic loss – Section 3 Civil Liability Act 1936 (SA) – pain and suffering, loss of amenities of life, loss of expectation of life, disfigurement.
2. Special Damages – medical expenses such as ambulance costs, x-rays, pathology tests.
3. Economic Loss – If the injured person loses income as a result of his or her injuries he or she may have a claim for economic loss. However, the first week off work and any claim for past or future loss of income must be discounted by 20% – Section 56A Civil Liability Act 1936 (SA).
4. Gratuitous services – A parent, spouse or domestic partner or child of an injured person who gives voluntary (gratuitous) service, may be able to claim for that service.

Contributory negligence reduces the amount of compensation:

This happens when the injured person is found to have contributed to the cause of his or her injury, by not taking reasonable care for their own safety or loss. For example, not wearing their seat belt in the vehicle (Section 49 Civil Liability Act 1936 (SA), driving whilst intoxicated, a driver failing to see an oncoming car turning right without giving way to them due to inattention on their part – texting on their mobile phone and not looking at the road.

NB:

1. More than one reduction may apply.
2. The reductions are in addition to any other reductions that may be applied for contributory negligence, such as failure to keep a proper lookout or driving at excessive speed.

Motor Vehicle Accidents – Time Limits to Issue Legal Proceedings for Compensation:

3 years for personal injury claims – documents must be filed at least 90 days before the 3 year time limit expires.

6 years for property damage or economic loss claims – documents must be filed at least 90 days before the 6 year time limit expires.

Motor Vehicle Accidents – Criminal Charges

The driver at-fault may also face prosecution for a driving offence. The penalties for traffic offences vary depending upon the offence charged and the relevant legislation. They range from a fine and disqualification of driver’s licence, to imprisonment which may or may not be suspended on a Good Behaviour Bond and so on. Penalties are imposed pursuant to the offence charged taking into account the requirements of the Sentencing Act 2017 (SA).

If a conviction is recorded it may affect your ability to travel and also impact on your job prospects.

Take care on the roads. Drive safely. Nobody wants to go to your funeral.

Disclaimer:

The contents herein are of a general nature only and not a substitute for legal advice. If you experience emotional distress by the discussion please seek professional help – Lifeline – 131114, 1800RESPECT, your Doctor or Community Health Centre.