Written by James Mulcahy
Usually, when a motor vehicle collision occurs, at least one driver will have been negligent. In other words, someone will have failed to take reasonable care: becoming distracted, failing to give way, running a red traffic light or speeding are frequent causes of collisions.
But there are situations where the collision may have been inevitable. A medical emergency is a common example. If a driver suffers a heart attack, for instance, and loses control of their vehicle, it may be there was no lack of reasonable care on the driver’s part; it was simply inevitable1. If that finding is made, the driver will not be liable to pay compensation to the other party.
Determining whether a collision was ‘inevitable’ can be challenging. And the consequences can be significant. By their nature, a claim that a collision was ‘inevitable’ tends to be an all or nothing defence. If accepted by a Court, nothing needs to be paid. If rejected, the driver will usually be fully liable for a third party’s claim (subject to any other grounds of dispute, such as quantum).
The claims are also, often, high in quantum. Because they typically involve a person who has lost control of their vehicle, significant damage can arise. Many claims involve the driver colliding with multiple vehicles and/or buildings, meaning the overall quantum of the claim can be significant.
Unfortunately there is no real shortcut to making decisions about which claims to progress where inevitable accident is raised. Those decisions usually involve extensive discussions with drivers and witnesses, and considering a large number of medical records. However, from our experience the following questions are useful starting points for recoveries and settlements claims officers grappling with these claims.
1. Did the driver lose control of their vehicle because of a medical emergency?
This sounds obvious, but is sometimes unclear. The best place to start is to look at the available medical records. If the driver went to hospital, the discharge summary will often contain a brief description of what transpired, and a primary diagnosis. This can shed light on whether the emergency did occur whilst they were driving, and whether it caused a loss of control.
Answering this particular question can be difficult where a driver claims to have ‘blacked out’. Issues can arise as to whether the driver blacked out prior to the collision, or because of the impact. Whilst medical experts are best-placed to determine this, it’s important to consider whether, for example, the driver suffered any injuries which might be consistent with a person having been ‘knocked’ unconscious (such as bruising or lacerations to the head).
2. Did the medical emergency and loss of control occur because the driver failed to take reasonable care?
Assuming it can be established that the driver suffered an emergency, it’s important to consider if the emergency arose because of some failure on their part. Examples of such situations could include:
- A person failing to take medication, as prescribed, which resulted in the emergency;
- A person whose licence was suspended due to an epileptic seizure deciding to drive, then suffering another seizure which results in the collision;
- A person with diabetes failing to monitor their blood glucose levels as directed by their medical practitioner (where, for example, the medical emergency involved a hypoglycemic event); or
- A person driving shortly after a blood test where they had a history of fainting after injections (where the medical emergency was syncope).
These are simply examples, and the ultimate findings in these types of scenarios is often nuanced and will depend on the particular circumstances of the claim and the driver involved.
3. Notwithstanding the medical emergency, once the symptoms commenced, could the driver have taken action to avoid the collision?
Even when a medical emergency occurs in circumstances where the driver had not acted negligently, there can sometimes be an opportunity for a driver to stop their vehicle before they completely lose control and damage is caused. Deciding whether a person had sufficient opportunity to take evasive action is often difficult, not least because the driver will regularly have difficulty recalling precisely what happened in the moments prior to losing consciousness (for example).
In K & S Freighters Pty Ltd v Nelmeer Hoteliers Pty Ltd 2, a truck driver with a history of heart disease began experiencing chest pain and other symptoms whilst driving. He took some medication and planned to travel a further two blocks before pulling into a side-street. The Court found his decision to continue rather than immediately stop meant the collision was not ‘inevitable’.
Summary
These questions are hopefully a useful starting point for claims officers (both in recoveries and settlements departments) in making claim decisions where ‘inevitable accident’ allegations are involved. Very often, significant investigation will be needed before the questions can be confidently answered. This usually includes gathering medical records and having detailed discussions with the driver and other witnesses.
It’s also important to ensure other legal issues that arise in the claim are not overlooked. There may be situations where another driver has also contributed to the collision, and/or where quantum issues arise. Ideally, these will be considered simultaneously with the inevitable accident defence.
Fundamentally, these claims can be tricky, and a lot hinges on a claims officer’s decision as to whether a collision was or was not inevitable. Should you wish to discuss any such claims, please contact me or any member of the Ligeti Partners’ team on 03 9947 4500.
- The legal position is that a ‘sudden and unheralded incapacitating event…may preclude a finding of negligence where the driver had insufficient time to avert the ensuing accident…’: Dowsing v Goodwin [1997] NSWCA 95.
- [2001] NSWCA 151.
