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Motor vehicle accidents – Sudden incapacitating events

Sudden incapacitating events

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In Leahy v Beaumont (1981) 27 SASR 290 (not on austlii) a driver suffered an attack of cough syncope leading to his temporary unconsciousness causing his vehicle to hit a shop. His car was travelling quite slowly and given that he had 6-8 seconds cheapestwindowskey.com between the coughing commencing and losing consciousness he had sufficient time to slow down or stop and was negligent in failing to do so. Many similar motorup.com.au cases canvassed in judgment.

 

See Matijevic v Taylor and Insurance Australia Group 23/9/13 [2013] ACTSC 192 per Master Mossop. P was injured when D’s vehicle collided head on into hers after drifting onto the wrong side of the road. D argued that he had suffered an episode of cough syncope, – uncontrollable coughing leading to a blackout. Having reviewed the medical evidence the Trial Judge found that whilst it was possible D had suffered from cough syncope, that the likelihood of this was extremely rare. D’s complaint of feeling ‘fluey’ falling short of the serious respiratory ailment conducive to cough syncope. The Trial Judge accepted D’s evidence that he had been coughing prior to the accident but not that he lost consciousness as a result of the coughing. P succeeded in her claim because it remained more likely than not that the accident was caused by inattention or other failure to maintain proper control over the vehicle during a period when the [1st D] could have had proper control of the vehicle rather than being a consequence of an event of actual unconsciousness over which the [1st D] had no control (77).

[Dowsing] “12 A sudden and unheralded incapacitating event, such as a bee sting or a stroke, may preclude a finding of negligence where the driver had insufficient time to avert the ensuing accident … Since the duty is to take reasonable care, it follows that (in Lord Blackburn’s words) ‘when a man is suddenly and without warning thrown into a critical position, due allowance should be made for this, but not too much.’ ‘Not too much’ because the reasonable driver is aware of the potential risk of the activity and may be expected to drive ‘defensively’ in the sense of making some allowance for dangerous situations not flowing directly from his or her own neglect … Thus, even when the driver is subject to a sudden and unavoidable onset of pain or other disabling factor, he or she will be expected to exercise reasonable care by slowing down or pulling over to the side of the road if such a reaction to the emergency is possible … A driver cannot take refuge in the fact that he or she was unconscious at the moment of impact if that dangerous situation was the product of lack of reasonable care … Even if the state of unconsciousness comes upon the driver unawares, there may still be liability if the driver should not have allowed himself outerspaces.com.au or herself to be behind the wheel at the time. For some conditions ‘if (a driver) knew or had reasonable cause to believe that he was subject to blackouts, it would have been an act of negligence to have driven a motor car at all’ … For other keystaging.ca conditions reasonable care would consist of taking reasonable precautions before getting behind the wheel on a particular occasion. The case was fought below on this latter basis.

These principles have been applied to cases involving diabetic hypoglycaemia[13]”.

… See, eg Turner’s Transport Ltd v Anderson (1962) 37 DLR (2d) 399. See also Porter v Price 355 P 2d 66 (1960); Hagg v Bohnet (1962) 33 DLR (2d) 378; Boomer v Penn [1966] OR 119. Care is required in dealing with one aspect of North American cases, which treat inevitable accident as a defence proof of which rests upon the [D]. That is not the law in Australia. See generally 93 ALR 3d 326 (‘Automobile Accident – Driver’s Blackout’). See also Whatmore v Jenkins [1962] 2 QB 572” [FN 7]. See case précis @ Diabetic attack.

Dowsing v Goodwin 10/11/97 [1997] NSWCA 40424/95 Mason P (Full Court) [(1997) 27 MVR 43,45-46]

 

[K&S Freighters] “22 The relevant legal principles were summarised by this Court in Dowsing v Goodwin (1997) 27 MVR 43. In my judgment with which Handley JA and Powell JA agreed I said (at 45- 46):

‘Negligence law in Australia remains wedded to the fault principle and the requirement that the [P] bears the onus of proof. A plea of inevitable accident is simply a denial of negligence. A sudden and unheralded incapacitating event, such as a bee sting or a stroke, may preclude a finding of negligence where the driver had insufficient time to avert the ensuing accident. Since the duty is to take reasonable care, it follows that in Lord Blackburn’s words when a man is suddenly and without warning thrown into a critical position, due allowance should be made for this – but not too much. Not too much, because the reasonable driver is aware of the potential risk of the activity and may be expected to drive defensively in the sense of making some allowance for dangerous situations not flowing directly from his or her own neglect. Thus even when the driver is subject to a sudden and unavoidable onset of pain or other disabling factor, he or she will be expected to exercise reasonable care by slowing down or pulling over to the side of the road if such a reaction to the emergency is possible’ …

23 The authorities cited for the last-mentioned proposition were Roberts v Ramsbotham [1981] WLR 823 at 832 and Leahy v Beaumont (1981) 27 SASR 290.

24 Continuing, from Goodwin, I said:

‘A driver cannot take refuge in the fact that he or she was unconscious at the moment of impact if that dangerous situation was the product of lack of reasonable care. Even if the state of unconsciousness comes upon the driver unawares, there may still be liability if the driver should not have allowed himself or herself to be behind the wheel at the time’.”

K & S Freighters P/L v Nelmeer Hoteliers 8/5/01 [2001] NSWCA 151 Mason P (Full Court)

 

See also Heart attack