We’ve all heard the story go if you rear-end someone then it’s your fault.

So when you’ve rear-ended someone and you think they were to blame, it can be frustrating.

On top of the damage to your car, you’re likely being chased by the other driver’s insurer. You could be injured. You could end up in a back and forth tug of war of his fault her fault. Being demonized for something that really wasn’t your fault.

Unfortunately, it’s an all too common occurrence, and one that people like Kayla have experienced on a much more serious level – we’ll get to her story soon.

But there’s good news for some drivers.

Not every rear-ender is the fault of the tailing driver.

In fact, there are many instances where the leading driver can be at fault, or at least partially.

These instances often include:

  • Slamming on the brakes suddenly and unexpectedly (whether to harass or annoy other drivers);
  • Drive aggressively or rampantly;
  • Failing to indicate a turn or lane change;
  • Driving too slowly;
  • Dangerous driving (such as driving carelessly in bad weather conditions);
  • Dangerously merging in front of you (cutting you off);
  • Failure to pull over and engage hazard lights when broken down;
  • Reversing suddenly;
  • Lacking functioning brake lights; and
  • Impeding on the space left between two cars that results in them being rear ended.

Been in a rear-ender and unsure if you were at fault? Get a free case review today.

Take Kayla’s story.

Kayla was driving along the Bruce Highway late one night.

Having just left a sports tournament in Gladstone, she was on her way back home to Maryborough.

4 lane expressway

Image 1: Unbeknownst to Kayla, a truck 

The 3.5hr drive was slightly tedious, but she didn’t mind it too much.

The sweeping turns, rolling trucks, and driver reviver coffees kept her alert.

But despite how alert she was, Kayla still found herself in a rear-ender accident. And she was the tailing car.

It was about 10pm when Kayla was passing through Howard, a small town just 25 minutes north of her home. She was travelling at a steady 75km/hr, just a few kilometres slower than the speed limit.

She was driving on a four lane expressway in the fast lane, slowly but steadily overtaking a car to her left.

Kayla could see a truck approaching the onramp at a slow speed and noticed the car next to her wasn’t quite slowing down.

She realised this car wouldn’t make it in front of the truck and braked to avoid the impending accident. 

As she braked, the second car took it as an opportunity to zip in front of her.

What the second driver didn’t foresee is the width of the truck, and the section of it that was hanging into Kayla’s lane. Right after speeding to overtake, he hit the brakes and Kayla had nowhere to go but right into the back of him.

She hit him, smashing straight into his boot, rupturing her bonnet and setting her airbags off.

It’s easy to see from this perspective that Kayla couldn’t have been to blame, surely. 

She took all of the actions necessary to evade the impending risk.

Kayla was obviously a victim of a rear-ender caused by the leading driver because they:

  • Slammed on their brakes suddenly;
  • Drove rampantly; and
  • Merged dangerously

But, despite that being obvious to people who knew the full story, the police who attended the scene of the accident did not. And as the tailing driver, there was already a preconceived idea that Kayla was at fault.

After all, she was the tailing driver. It was presumed that her tailgaiting had caused the accident.

The assumption that she was at fault was causing her a lot of anguish. She was being blamed for the accident. She was being chased for money by insurers. She was being hounded by the other driver for money. This was all on top of her own car being written off. A massive cost she already had to bear.

In any situation, it’s important to remember that tailgating is still illegal.

And, in a lot of situations, the car who rear-ends will almost always be considered partially negligent. This is often referred to as ‘presumed liability’.

Definition: Presumed Liability

Presumed liability refers to the automatic assumption of liability for the less vulnerable road user. In rear-ender accidents, this is the trailing car.

Been in a rear-ender and unsure if you were at fault? Get a free case review today.

This is demonstrated in the case of Habig v McCrae & Ors [2013] QSC 335, where both parties involved were found to be partially negligent.

Habig was a young German tourist driving down the Bruce Highway at night when, just north of Pindi Pindi, his van broke down.

On a dark night, in a dark, dull van, with no reflective fittings, the van was difficult to spot from a distance.

Habig had left his car blocking the southbound lane without thinking of the danger for oncoming traffic.

On a two-lane expressway, his actions left one lane completely blocked; forcing drivers who were lucky enough to spot them to drive into the oncoming traffic to get around.

Multiple drivers had near misses, and one even stopped to let Habig and his passenger know to move the van.

Ignoring the warnings and near misses, Habig left his car blocking the lane.

McCrae, on-shift as a truckie, came down the road at 100km/hr. With lights on low beam, it was impossible for him to see the van. 

In a split second, McCrae’s truck collided with Habig’s van. The impact inevitably caused serious head injuries to Habig.

In court the judge found that both Habig and McCrae were equally at fault, apportioning liability as 50/50.

Definition: Apportionment of Liability 

Apportionment of liability refers to the sectioning of each party's responsbility for the damage.

This is because the judge found Habig liable for:

  • Failing to take reasonable care for his own safety;
  • Failing to warn oncoming traffic of the danger ahead; and
  • Failing to remove a known danger.

And found McCrae liable for:

  • Not exercising appropriate caution in a truck of his size;
  • Failing to drive at a speed appropriate for his truck size and the level of illumination (low beam); and
  • Failing to keep a proper lookout on the highway ahead as he looked to the side of the road at another parked 4WD.

In this case, it would seem the answer was obvious – one party left a car in the middle of an unlit road, with no warning to the danger.

Unfortunately, the answer wasn’t that obvious. 

As the driver who rear ends a car, you have a lot to prove. And you won’t always be able to get out scot-free.

But what's important is that you get your evidence right. Assess the situation and stick to the truth.

Fighting a rear-ender compensation claim as a trailing car can be an uphill battle, so it's best to know where you stand before starting the fight. If you've been in a rear-ender accident and you want an expert's opinion, you can give us a call or request a callback for a free case review. 

Been in a rear-ender and unsure if you were at fault? Get a free case review today.


The material on this page is provided for general information and educative purposes in summary form on legal topics which is current when it is first published. The information contained on this web site is general in nature and does not take into account your personal situation. The content does not constitute legal advice or recommendations and should not be relied upon as such.

Appropriate legal advice should be obtained in actual situations.

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