Australia: Bus driver found not to be negligent in manner of driving to avoid a rear-end collision
Curwoods Case Note

Penrith City Council v East Realisations Pty Ltd (in liquidation) [2013] NSWCA 64

In Brief

• To find a driver negligent in a situation where both vehicles had the benefit of a green light, a higher standard of care than the normal requirement to exercise reasonable care in all the circumstances would be imposed.
• The myth that it is reasonably foreseeable that a car might suddenly stop when presented with a green light does not, in itself, give rise to finding of want of duty of care simply because a passenger was injured when a driver took evasive action to avoid a collision.
• It does not necessarily follow that a breach of a Road Rule leads to a finding of negligence. Rather, such breach may constitute evidence of a breach of duty of care.
• Where an insurer insures a number of vehicles, it is not necessary to identify the particular vehicle at fault. It is only necessary to establish that that insurer is the relevant insurer for all vehicles identified.

Background

On 21 July 2003, the worker (who was employed by Penrith City Council) was injured whilst a passenger on a bus, having been thrown from her seat as a consequence of the bus driver braking heavily in order to avoid colliding with the rear of a motor vehicle which had come to an abrupt stop at a set of traffic lights in front. Both the bus and the car were being driven in a northerly direction and, on their approach to the intersection, had a green light. Particulars of the registration of the car were not obtained and the incident was not reported to police.

The worker made a claim against Penrith City Council pursuant to her workers compensation rights. The worker did not pursue a claim against the CTP insurer of the bus or the car.

The cause of action arose out of the indemnity conferred by s 151Z(1)(d) of the Workers Compensation Act 1987. The workers compensation insurer (the Appellant) sued in its own name to recover compensation paid to the worker against East Realisations Pty Limited (the First Respondent), alleging that they were the owners of the bus at the relevant time and the bus driver was negligent. The Appellant relied upon Rule 126 of the Australian Road Rules, which requires a driver to drive a sufficient distance behind the vehicle travelling in front so the driver can, if necessary, stop safely to avoid a collision with the vehicle.

The workers compensation insurer also joined the Nominal Defendant (the Second Respondent), alleging the identity of the car could not be established after due search and inquiry and the driver of the car was negligent.

The proceedings were heard at first instance in the District Court of NSW by Levy SC DCJ, who entered a verdict and judgment in favour of the Respondents. His Honour ultimately found that the Appellant had not established that either the bus driver or the driver of the car was in breach of their duty of care. Secondly, the Appellant had not established that the First Respondent was the owner of the bus. Thirdly, the Appellant had not satisfied the requirements of s 34(1) of the Motor Accidents Compensation Act so as to entitle it to recover against the Second Respondent if the driver of the bus had been negligent.

The Appellant challenged the findings of Judge Levy in the Court of Appeal.

The Court of Appeal Decision

The leading judgment was delivered by his Honour Tobias AJA, with their Honours McColl JA and Meagher JA concurring.

There were four issues which were determined on appeal. Firstly, the negligence of the bus driver. Secondly, the negligence of the driver of the car. Thirdly, the identity of the owner of the bus. Fourthly, due inquiry and search with respect to the car.

The Appeal with respect to the negligence of the bus driver

Justice Tobias noted that the worker was the only person to give evidence at the hearing, which was held some nine years following the accident. No evidence had been given as to the speed of the bus, the steepness of the terrain leading up to the intersection, the distance the bus had travelled behind the unidentified car, or the distance between the bus and the car when the latter stopped suddenly and the former applied its brakes. At all material times both the car and the bus had a green light permitting each to proceed into the intersection.

Tobias AJA accepted that there may be some cases in which a bus driver may be found negligent in failing to leave a sufficient distance between his bus and the vehicle in front of it where it is reasonably foreseeable that that vehicle may stop. However, in this particular situation, the mere fact that it was reasonably foreseeable that a car might stop suddenly despite having a green light does not give rise to a finding of breach of due care simply because a passenger is injured when a driver takes action to avoid a collision. Additionally, even if it was reasonably foreseeable that the car might suddenly stop, this was unlikely in the circumstances and, therefore, any risk of harm was low.

In finding that the Appellant had not established error on the part of the primary judge in rejecting its claim that the bus driver was negligent, and that there was no breach of Rule 126 of the Road Rules, Justice Tobias made the following comments at paragraph 52 of the Judgment:

"In my view to find the bus driver negligent in the present case given the paucity of evidence and context in which to assess the driver's response to the car suddenly stopping at a green traffic light would impose a higher standard upon the bus driver than the requirement to exercise reasonable care in all the circumstances mandated. Accordingly in my opinion the appellant has not established error on the part of the primary judge in rejecting its claim in that the bus driver was negligent."

The Appeal with respect to the negligence of the driver of the car

The Appellant maintained the submission that the prevailing traffic conditions exposed a reasonably foreseeable risk of injury to the worker in the event the car stopped suddenly at the intersection and required urgent action on the part of the bus driver.

In support of that submission, the Appellant contended that the presence of the green light created an expectation that the car would proceed through the intersection rather than stop and the driver, having "slammed on her brakes and stopped dead at the intersection without warning", created a risk of harm to the worker.

Justice Tobias upheld the finding by the primary judge that the Appellant's submission was unsustainable, with there being potentially numerous reasons why the car stopped at the green light. Tobias JA agreed with the primary judge that there was no evidence of the knowledge of the driver of the car, and acceptance of the Appellant's submission that the driver of the car had been negligent would require an inferential finding involving unwarranted and impermissible speculation.

The Appeal with respect to the ownership of the bus

The evidence confirmed that, in 2003, the First Respondent was known as Westbus Pty Limited (Westbus). At the relevant time it operated a large Western Sydney bus business through various corporate entities.

The Appellant sought a finding that the bus was a Westbus bus for which the First Respondent was responsible. However, the driver could not be identified in that there was no evidence as to the registration number of the bus.

It was not disputed that the bus was a Mercedes Benz Model LO812, was yellow in colour and had the name Westbus and the company's logo stencilled or painted on its near side.

The RTA Certificates identified 8 yellow buses of that model, all of which were registered to Westbus. The Certificates identified Zurich Australia as the relevant CTP insurer of all 8 yellow buses. During the District Court trial, it was submitted by the First Respondent that it could not be concluded that one of the 8 buses of that make, model and colour registered to Westbus as of 21 July 2003 was the precise bus involved in the subject incident. This submission was accepted by the primary judge.

The Appellant relied on the decision by the Court of Appeal in The State of New South Wales v Nominal Defendant² . In that case it was determined that a bus which was involved in a motor vehicle accident was owned by the State Transit Authority and, therefore, the identity of the insurer was established, there being only one such insurer. Santow JA, with whom Beazley JA and Stein AJA agreed, found that where a plaintiff suffers bodily injuries as a result of the fault of a bus driver, the CTP insurance held by the State Transit Authority will respond. It does not matter for that purpose that the particular bus cannot be identified by its registration number.

Tobias AJA concluded that, in the present matter, the evidence established that all 8 of the relevant buses were owned by Westbus Pty Limited. There was no evidence that Westbus operated buses of the relevant model type and colour which it did not own. Accordingly, his Honour was of the view that, on the balance of probabilities, it was open to conclude that the bus involved in the subject incident was one of the buses registered in the name of Westbus Pty Limited and, therefore, the First Respondent's insurer would respond. In so arriving at this conclusion, Tobias AJA disagreed with the trial judge's findings in this regard.

The Appeal with respect to due inquiry and search of the car

This issue was not determined by the trial judge at first instance.

Justice Tobias noted the principles outlined by the Court of Appeal in Nominal Defendant v Meakes³ , as well as the fact the evidence on the identity of the car was confined to the worker's statement that it was a red or maroon sedan and the issue of establishing the identity of the car did not arise until 2008 (by which time the First Respondent was in liquidation).

The Second Respondent submitted that an inquiry should have been made of the liquidator of the First Respondent so as to ascertain whether any incident report had been provided, or whether there was any other document which might identify the registration number of the bus on the relevant route on the relevant date so as to ascertain the identity of the bus driver and, (possibly) in turn, the identity of the car.

Tobias JA rejected this argument, stating that "the trail was not merely cold, but frozen, at that point" and any such inquiry of the liquidator would have been "purely ritualistic" and "proved futile".

Accordingly, his Honour found that the requirements of s 34(1) of the Motor Accidents Compensation Act were satisfied such that if the Appellant had established that the driver of the car had been negligent, then it would have been entitled to recover from the Second Respondent.

Conclusion

Whilst the Appellant was successful in challenging the findings made at first instance in relation to ownership of the bus and the liability of the Second Respondent in respect of the car, it was unsuccessful in challenging the findings that neither the bus driver nor the driver of the car was negligent. Accordingly, the appeal was dismissed with costs.

Implications

This is an interesting case for insurers, particularly those who insure buses.

When determining liability on a claim, it is important to keep in mind the individual factual situations and whether or not they give rise to a breach of duty of care. The mere fact that a party has failed to brake in time to avoid a rear-end collision does not necessarily mean that negligence will be found.

Where an insurer insures all relevant buses identified (even if a plaintiff is unable to prove which individual bus was involved), a court will find that the insurer should respond as, on the balance of probabilities, the bus involved would have been insured by that insurer.

Footnotes

1 McColl and Meagher JJA, Tobias AJA
² [2004] NSWCA 328
³ [2012] NSWCA 66 at [30]-[45]; [54]-[55]

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