On 20 February 2020, the Supreme Court of The Australian Capital Territory handed down a decision in Carvalho v Town [2020] ACTSC 1, a claim for personal injuries compensation arising from a motor vehicle accident between a fire appliance driven by firefighter Town and a vehicle driven my Mr Carvalho.

Two interesting points to note. First, the matter was originally heard in the Magistrate’s Court. The Magistrate found that the driver of the fire appliance was negligent but that responsibility for the accident should be apportioned 40% to firefighter Town and 60% to Mr Carvalho. The end result was an award of damages in Mr Carvalho’s favour. The Magistrate assessed Mr Carvalho’s damages at $40,600. Discounting that amount to reflect Mr Carvalho’s contribution, the final award was $12,429.93 plus $2500 costs (all met by the ACT Insurance Authority, not Mr Town). The first thing to note therefore is that in terms of litigation this case did not involve a large sum of money.

Notwithstanding the value of the claim the matter was heard in the Magistrates court over three days in March 2018. An appeal was heard in the Supreme Court, before Mossop J on 9 December 2019. The decision of the court was handed down on 20 February 2020.  The accident happened on 27 February 2013. That means this decision was handed down one week short of 7 years after the accident. As we will see there was nothing particularly complex in this matter, so how it takes 7 years to resolve a relatively simply motor accident claim is, to be blunt, beyond me.

The facts

The facts were in dispute, but the finding of the Magistrate was that the fire appliance was travelling along Adelaide Avenue in Canberra.  Adelaide Avenue is a major road between the Canberra city and the satellite centre of Woden. It’s three lanes in each direction with the right most lane a T2 (Transit 2) lane so open only to vehicles with 2 or more persons, motorcycles and buses.

The evidence was that the fire appliance driven by Mr Town was travelling south in the T2 lane with lights and siren activated. They needed to do a u-turn to make their way to their emergency call. There was a u-turn bay across a wide nature strip. To make that u-turn Mr Town moved into the middle lane and slowed down, he began to turn across the T2 lane and collided with the vehicle driven by Mr Cavalho that was passing the slow moving appliance on its right.

The court held that the driver of the appliance, even though he was responding to an emergency call, that other drivers had obligations to give way and that he had the benefit of the exemption under the Australian Road Rules r 306, still owed a duty of care to keep a proper lookout for other road users.

(Interestingly the judgement says (at [20]) ‘The respondents had relied upon r 79 of the Road Transport (Road Rules) Regulation 2017 (ACT) that requires a driver to give way to an emergency vehicle displaying a flashing red or blue light’.  Or course the 2017 version of the Road Rules could not have been in force on 27 February 2013.  One assumes that the relevant law at that time was the Road Transport (Safety and Traffic Management) Regulations 2000 (ACT) that incorporated the Australian Road Rules into ACT law. Rules 79 and 306 were not significantly different at that time).

The Magistrate said (quoted at [21]):

There was a duty on the driver to take a high level of care to ensure that other road users were not placed in danger by the manoeuvre.  There is no evidence that the [appellant’s] vehicle was travelling at high speed, and yet the testimony of Officer Town was that he at no time saw the [appellant’s] vehicle before the collision.  That concession strongly supports a conclusion that, as the driver of the appliance, he breached a duty of care to the [appellant] to keep a proper lookout and I so find.

As noted, it was found that the plaintiff was 60% responsible. He was in a lane to the right of the appliance, He had ample opportunity to observe the appliance with its emergency lights on and then the right-hand indicator. Even if he did not know exactly what the appliance driver intended to do, he was indicating an intention to move to the right. The Magistrate found (at [25]):

… that a careful driver would have seen the indicator and would have slowed or stopped his or her vehicle to avoid a collision.  Even if the indicator had not been observed then the operation of the lights and perhaps the marked slowing of the vehicle with no obvious destination in sight would have caused a careful driver to slow or stop his or her vehicle.  He therefore found that the appellant’s failure to take reasonable care for his own safety contributed to his own injury to the extent of 60%.

All parties appealed. Mr Carvalho argued that the assessment of contributory negligence was too high, that the assessment of damages was too low, that there was fraud by the respondents, that the Magistrate was compromised by a conflict of interest, that his lawyer failed to follow his instructions, that he had new evidence, that their was collusion between witnesses for the respondent/defendant and that the Magistrate’s assessment of his and his mother’s credibility was unreasonable.  The defendant (Mr Town represented by the ACT Insurance Authority) also appealed arguing that the Magistrate erred in finding that there had been any negligence by Mr Town and/or the Magistrate should have found that Mr Carvalho’s actions amounted to 100% contributory negligence.

His Honour rejected all the grounds of appeal confirming that the Magistrate made no error in his assessment of the evidence or the law, confirming the finding of responsibility 40:60.

Legal lessons

This was not a complex case. The legal lesson for readers of this blog is to confirm, yet again, that even though the driver of an emergency vehicle has an exemption from the road rules, and even though other drivers are required to give way to emergency vehicles, each driver still owes a duty to avoid a collision.  The exemption from the road rules is not an exemption from all law or the duty to take care.

As His Honour said (at [102]), with respect to his case:

… there was no allegation nor finding of negligence arising from the fact that [the appliance] was making what would otherwise be a dangerous and inappropriate turn … it was appropriate for the first respondent to make that turn, but that in doing so a lookout should have been kept for vehicles in the lane to the right which, apart from viewing the indicator, could have no expectation that the vehicle would make that manoeuvre.