Introduction
Accidents happen on the road every day. Accidents between motorbikes and horses are less common, however, that is precisely what happened in this interesting case (Lawes v Nominal Defendant [2007] QCA 367). In this story, we discover that accidents that, at first glance, don't involve a motor vehicle are still valid in the eyes of the Court and how important it is to know your obligations as a responsible road user.
Ricky's Story.
Let me introduce you to Ricky Lawes.
Ricky* was a typical 21 year old. He enjoyed going to the pub with his mates and often found himself on the weekend joining his mates for a surf up the North Coast at Rainbow Beach.
Ricky had recently bought himself a new motorbike and often took it for long rides along the back roads to the coast.
Ricky dreamt of becoming an electrician.
Ricky's Dream
I am studying my apprenticeship to become an electrician. I should be done in the new year.
I am looking forward to starting my dream career.
Ricky was on track to finish his apprenticeship and get his Electrical Licence until...
He hit a horse while riding his motorbike.
It was Christmas time and Ricky took his bike out a Friday evening for a ride up to Rainbow Beach.
He was riding along Tin Can Bay Road. Locals would know it’s a quiet, rural road that’s set among forestry and with no street lights.
As Ricky was soon to discover, someone had struck and killed a horse in the hours before Ricky hit the road. This driver left the horse in the middle of the road, creating a massive hazard to oncoming drivers.
Ricky was following a ute and the pair were hurtling at 100km/hr towards the horse.
Ricky decided to overtake the ute. This decision wasn’t dangerous. Ricky wasn’t speeding, the road was long and straight and there were no cars around.
Almost immediately after overtaking the ute, Ricky saw the horse lying on the road. He attempted to swerve around it but with no time or warning, Ricky was unsuccessful. He hit the horse and was thrown from his bike, into a grassy ditch on the side of the road and knocked unconscious. The ute driver he overtook pulled over and called an ambulance. Ricky's injuries were substantial.
Almost immediately after overtaking the ute, Ricky saw the horse lying on the road. He attempted to swerve around it but with no time or warning, Ricky was unsuccessful. He hit the horse and was thrown from his bike, into a grassy ditch on the side of the road and knocked unconscious. The ute driver he overtook pulled over and called an ambulance. Ricky's injuries were substantial.
Ricky was frustrated and mad.
His dreams of completing his apprenticeship were dashed. He had to take significant time off work and his apprenticeship was put on hold.
Ricky's future was in jeopardy and all because someone had struck the horse, leaving behind an obvious hazard.
No one deserves to be held back because of someone's careless decision.
The government recognises this and has provided a scheme for people like Ricky so they can get back to where they were before the accident. Those who have suffered from an accident can bring a claim against the at-fault driver to replace their lost income and superannuation.
The problem for Ricky was he had no idea who hit the horse.
Introducing the Nominal Defendant.
Who is the Nominal Defendant?
Click to reveal it's definition
Nominal Defendant
To have a case against the Nominal Defendant, the accident has to have been caused by a motor vehicle, which seems obvious right?
Well no. Ricky hit a horse not a car.
However, Ricky, through his lawyers, argued that the road hazard was caused by another car and the hazard was continued by every single car that passed the horse but failed to warn other road users.
Ricky raised a claim against the driver who hit the horse and left the scene.
This is what the case hinged on - could Ricky’s accident be blamed on the driver failing to warn of an upcoming hazard or should Ricky have been able spot the hazard himself?Ricky had to prove that the driver acted negligently to win compensation.
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Was the driver acting negligently?
Ricky needed to prove to the Court that the driver that struck the horse was driving negligently and this caused him to hit the horse. Simply put, the driver needed to be driving recklessly (i.e. speeding, driving erratically, under the influence of alcohol) to be found responsible for Ricky's accident.
The Judge quickly established that the horse being struck by a person driving negligently was unlikely.
Judge J Byrne
"The collision between vehicle and horse could readily have happened without breach of duty to road users. 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."
So the driver wasn't acting negligently and wasn't to blame for creating a hazard but was it his responsibility to warn others of the hazard?
Should the driver have stayed at the scene?
The judged believed yes. Regardless of whether the driver was at-fault for creating the hazard, they should have known that the collision created a significant hazard.
All drivers, once they come across a hazard, are responsible for ensuring that other road users are aware of the hazard.
The judge stated that the driver who struck the horse had plenty of time to position their vehicle so its lights illuminated the horse. This could have been used alongside their warning lights and would have given other driver greater warning of a hazard ahead. These actions could have warned Ricky of the upcoming hazard with enough time for him to avoid the accident.
Therefore, the driver was found to be responsible for Ricky's accident.
Ricky was successful. He proved that the driver's failure to stay at the scene caused his accident.
But Ricky hit a minor snag. The Judge found that Ricky had contributed to his injuries.
At the time of the accident, Ricky tried to swerve to avoid the horse, but didn't reduce his speed.
Judge Byrne J
"What confronted [Ricky] 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."
The Judge believed that this failure was an act of contributory negligence and as such Ricky's compensation should be reduced by 20%. Ricky was awarded in total $212,000.
What is Contributory Negligence?
Click to reveal it's definition
Contributory Negligence
Ricky's case highlights that other road users have a responsibility to warn other road users about a hazard ahead.
Tip
If you have created a hazard on the road then you have a duty to warn other road users and minimise the risk of harm to others. There is no one-size-fits-all answer to this problem. Your action after creating a hazard will depend entirely on the circumstances and the potential risk of injury to other road users.
Written by Mitchell Herlihy | Associate
* The names and narrative have been altered but the facts of the case in regards to payments, liability and the Judge's findings on the evidence are reported as written in the judgement.