Consciousness and negligence

Smith v NRMA Insurance Ltd [2017] NSWCA 172: A decision handed down on the 18th of July this year in the Supreme Court of New South Wales Court of Appeal affirmed that a driver, who suffered cardiac arrhythmia before striking a vehicle on the opposite side of the road and catastrophically injuring a young boy, was not liable for negligence. This was because it could not be established that at the time of the collision the van driver was conscious and driving. The driver, Mr Messruther, was pronounced dead at the scene.

We thought that this decision might be interesting as it illustrates the interaction between the doctrine of negligence and the relevance of consciousness of the defendant. Importantly, the Court noted that if it had been established that the driver was conscious and in control of the vehicle, it would have been established that he had been negligent and substantial damages would have been awarded. However, this could not be established and the appellant was thus not entitled to recover damages. If the accident had occurred after the introduction of the ‘blameless accident’ provisions of the Motor Accidents Compensation Act 1999 (NSW), then Part 1.2 would apply, and specifically section 7J, which allows recovery of damages for children where the driver was not at fault.

Contact Meridian Lawyers Principal Rob Minc for more information on this decision.

To read more about the Court’s decision, follow this link: http://www.austlii.edu.au/au/cases/nsw/NSWCA/2017/172.html

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