Evic Rides Again – Driver in Single Vehicle Accident Not Mostly at Fault

In Brief

• An insurer may rely on res ipsa loquitor (the facts speak for themselves) to establish that a claimant was wholly or most at fault.
• Res ipsa loquitor is an inferential reasoning process rather than a substantive rule of law.
• Where a motor vehicle runs off a road, that fact – standing alone and unexplained – provides some evidence that the driver failed to exercise reasonable care.
• Contributory negligence in single vehicle accidents is assessed by reference to the extent to which the driver’s conduct departed from the required standard of care

Facts

The Personal Injury Commission (PIC) published its decision in Earle-Joyce v AAI Limited t/as AAMI [2024] NSWPIC 626  on 22 November 2024.

In the early hours of the morning on 16 April 2023, the Claimant was driving on Springwood Road near Yarramundi. Whilst navigating a sweeping left-hand corner in the road, the Claimant’s vehicle crossed onto the wrong side of the road before colliding with a tree.

The Claimant had no recollection of the accident and there were no witnesses.

The road was sealed and dry. The weather was fine. It was dark and there was no street lighting. The Claimant was travelling at a speed of at least 80kph, but his actual speed was not known.

The Insurer served a Liability Notice denying that the Claimant was entitled to ongoing statutory benefits because he was wholly at fault for his accident. The Insurer relied upon res ipsa loquitor and reasoned that the Claimant’s loss of control spoke of a want of care on his part.

The Insurer’s Liability Determination was confirmed on Internal Review.

The Claimant referred the dispute to the Personal Injury Commission by way of an Application for Miscellaneous Assessment.

The PIC Member’s Decision

The PIC Member found that the Claimant was partially at fault for his accident but not wholly at fault, for the following reasons:

• The Claimant offered various possible explanations for his loss of control including:
  • The road surface was slippery.
  • There was some mechanical failure.
  • He swerved to avoid an animal on the road.
  • He swerved to avoid an oncoming vehicle.
• Each of the Claimant’s possible explanations, however, were mere possibilities. There was insufficient evidence to elevate any one explanation to a probability.
• Given that a vehicle would not normally run off the road and collide with a tree without some failure by the driver to exercise reasonable care, an inference may be drawn that the accident was caused by some want of care on the part of the Claimant.
• In single vehicle accidents, such as this one, contributory negligence is measured by the extent to which the driver departed from the standard of care required of them.
• Whilst it may be inferred that the accident was caused by his want of care, the Claimant’s departure from the required standard of care sits somewhere on a spectrum between gross negligence and a momentary lapse of attention.
• In the absence of direct evidence of the extent to which the Claimant departed from the required standard of care, a just and equitable finding is that the Claimant was 60% responsible for the accident.

Key Learnings

The decision in Earle-Joyce represents another interesting application of the recent Supreme Court decision in AAI Limited t/as GIO v Evic.

Prior to Evic, contributory negligence in single vehicle accidents was traditionally decided on one of two bases:

• If the driver of the only vehicle in the accident was negligent, then it follows that the driver must be wholly at fault because nobody else was at fault.
• If a single vehicle accident was caused by a combination of the driver’s want of care and another factor – such as gravel on the road – then contributory negligence should be assessed by comparing the contribution of the driver’s want of care and the contribution of the extraneous factor.

Based on Evic, each of these approaches is incorrect. The Supreme Court in Evic found that in single vehicle accidents, contributory negligence is assessed by reference to the extent to which the driver’s conduct departed from the required standard of care. As the Member in Earle-Joyce pointed out, that departure may range from gross negligence to a momentary lapse of attention. The task required by Evic is to decide where the particular driver’s want of care lands on that spectrum.

Our Case Note on Evic can be found here.

Our Case Note on Custovic – which also applied Evic – can be found here.

If you have a query relating to any of the information in this case note, or would like to discuss a similar matter of your own, please don’t hesitate to get in touch with CTP Insurance Principal, Peter Hunt, today.

Additional McCabes Resources

• MC PIC Decision of the Week
• MC MAIA Toolkit
• The Proper Lookout Podcast
• MC Ready Reckoner