Case Note: Apportionment of liability

How does the Court apportion liability in instances where there has been contributory negligence by both parties? The Queensland Supreme Court’s decision in Smith v Randall[1] is one which considered this in light of two drivers who were found guilty of contributory negligence.


The Facts

At around 5:00am on 21 January 2013, Mr Randall was driving his utility vehicle west along the Gore Highway, outside of Toowoomba. Mr Smith was travelling behind Mr Randall in a milk truck.

Mr Randall slowed his utility vehicle to about 10kilometres per hour and moved toward the central line of the road without indicating. Mr Smith thought that the utility vehicle ahead was either broken down, travelling slowly or completely stopped. Mr Smith attempted to overtake as Mr Randall turned right causing the two vehicles to collide and the utility vehicle to roll. Both drivers were injured in the accident.

Both Mr Randall and Mr Smith brought actions in negligence claiming damages for the injuries they sustained from the accident. AAI Limited (Suncorp Insurance) was the compulsory third party insurer of both vehicles.

Both drivers owed a duty of care to take reasonable care in the control of their respective vehicles so as to prevent harm to the other (at [61]). It was reasonably foreseeable that if precautions were not taken that serious harm to another road user could result.


Mr Smith’s liability

Mr Smith gave evidence that he did not slow down more because he thought Mr Randall was either broken down, travelling slowly or completely stopped. He also gave later evidence that he thought the utility vehicle was going to turn left and ‘apex the turn’ (at [12]). His Honour found this evidence unconvincing given that the vehicle had slowed to 10 kilometres an hour. Further Mr Smith knew that  drivers on those roads did not always indicate their intention to turn.

The Court found that a reasonable person would have decelerated after they had realised the utility vehicle was slowing down, regardless of the driver not indicating. Mr Smith’s failure to take these precautions meant that he had breached his duty.


Mr Randall’s liability

The Court also found Mr Randall’s evidence to be ‘completely unconvincing’ (at [27]). Mr Randall had failed to use an indicator before turning and if he had looked in his rear and side view mirrors he would have seen Mr Smith’s headlights approaching. He had therefore made a right turn when it was unsafe to do so. Mr Randall claimed that the truck ‘seemed to come out of nowhere.’ However this was a result of his failure to check the mirrors. In light of this his Honour found that Mr Randall had driven without due care and attention.

Mr Randall was also intoxicated at the time of the accident with a blood alcohol content of 0.058% taken at the scene of the accident. The Court held that his intoxication had contributed to his failure to use an indicator and to drive with due care and skill. Therefore pursuant to s 47 of the Civil Liability Act 2003 (Qld) Mr Randall fell within the presumption of contributory negligence. Mr Randall was unsuccessful in rebutting this presumption.

The Court found that a reasonable person would have used an indicator and kept a proper lookout for other vehicles. Mr Randall’s failure to take these necessary precautions meant that he had breached his duty.



The Court explained that apportionment of liability between the two parties involves a ‘comparison of both culpability, that is the degree of departure from the standard of care required of the driver, and of the relative importance of the acts of the parties in causing the damage (at [74]).’ On the one hand Mr Randall was vulnerable to injury by a following car who did not slow down or who attempted to overtake him. On the other hand, Mr Smith was vulnerable to injury if he collided with a vehicle who obstructed his path whilst he attempted to overtake it (at [76]). The Court was of the opinion that both parties had to a substantial degree departed from the standard of care required of them and thus there was no real difference in culpability. The Court therefore apportioned liability equally between Mr Smith and Mr Randall.



Following vehicles (like Mr Smith), are usually in a better position than leading vehicles (like Mr Randall) to avoid collision because they have a better view of what is in front of them. On this basis it should have been more difficult for Mr Smith to prove that Mr Randall had been negligent. However Mr Randall’s intoxication played a significant role in diminishing his advantage of being the leading vehicle. Drivers should remember whether they are the leader or the follower, they owe the same duty of care to take reasonable care in the control of their vehicle so as to prevent harm to the other.


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[1] [2016] QSC 191.