Slippery When Wet – When an Unsafe Speed Means You’re Livin’ on a Prayer

In Brief

• In single vehicle accidents, contributory negligence is assessed by reference to how far the Claimant’s driving behaviour departed from the required standard of care.
• A driver may be travelling at a dangerous speed, for the conditions, even when they are driving within the speed limit.

Background

The Personal Injury Commission (PIC) published its decision in Mellor-Langham v QBE Insurance (Australia) Limited [2025] NSWPIC 194 on 23 May 2025.

On 12 March 2024, the Claimant was driving in a semi-rural area near Murwillumbah. She came to a bend in the road, lost control of her vehicle and collided with a truck travelling in the opposite direction. Unsurprisingly, the Claimant suffered a range of serious injuries including multiple right leg fractures and a degloving injury to her right arm.

The Insurer denied liability for ongoing statutory benefits beyond 52 weeks on the grounds that the Claimant was wholly or mostly at fault for her accident.

Following an unsuccessful application for Internal Review, the Claimant lodged a Miscellaneous Assessment dispute in the Commission.

Facts

The PIC Member made the following findings of fact:

• Whilst it had been raining earlier on the day of the accident, it was not raining at the time of the accident.
• There was some leaf matter on the road but there was no significant leaf or other debris on the road.
• There was an oily film on the road but there was no oil spill.
• The Claimant knew that there was an oily film on the road because she mentioned it in both her claim form and in a statement she gave police.
• The speed limit was 80 kph.
• There was a speed advisory sign about 140 metres before the corner where the accident occurred.
• The speed advisory sign recommended a speed of 35 kph.
• The accident occurred on a blind corner.
• The Claimant was travelling at approximately 60 to 65 kph as she drove into the corner.

The PIC Member’s Decision

The PIC Member found that the Claimant was wholly or mostly at fault for her accident for the following reasons:

• Whilst the Claimant was driving within the overall speed limit of 80 kph, her speed of 60 to 65 kph, was above the speed of 35 kph recommended by the speed advisory sign.
• Whilst not a speed limit, the 35 kph recommended by the speed advisory sign indicates the safe speed for the relevant corner in the road assuming dry weather conditions.
• A reasonable driver would reduce their speed to a speed even lower than that recommended by the speed advisory sign in wet conditions.
• By maintaining a speed of 60 to 65 kph, the Claimant was driving at an unsafe speed, for the prevailing conditions, even though it was inside the overall speed limit.
• By driving at an unsafe speed, the Claimant deprived herself of the opportunity to observe the oily sheen on the road and to modify her driving accordingly.
• As such, the Claimant’s driving behaviour departed from the required standard of care.
• The Claimant’s contribution to the accident was significant and should be assessed at 70%.

Why This Case is Important

The decision in Mellor-Langham provides another useful application of the Supreme Court’s decision in AAI Ltd t/as GIO v Evic.

In Evic, the Supreme Court noted that the concept of relative culpability is inappropriate in single vehicle accident claims because there is only one party involved in the accident. Relative culpability cannot, therefore, be compared. The Supreme Court, therefore, held that in single vehicle accident cases, contributory negligence is measured by assessing how far the driver’s conduct departed from the required standard of care.

In this claim, the PIC Member found that the Claimant’s departure from the required standard was significant because she was driving well in excess of the safe speed for the corner, in wet conditions, even though she was driving within the overall speed limit.

To explore other claims where PIC Members have applied Evic:

• Evic Applied – Assessing Contributory Negligence in Single Vehicle Accidents – McCabes Lawyers
• Evic Rides Again – Driver in Single Vehicle Accident Not Mostly at Fault – McCabes Lawyers

If you would like to discuss this case note, 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