The Not So Inevitable Inevitable Accident!

In this article Jonathan Agnew of recoveriescorp engages our expert law firm, Mason Black Lawyers to assist in clarifying the common misconceptions surrounding the inevitable accident defence.

Recoveriescorp’s experience has been that the inevitable accident defence is frequently applied incorrectly to deny liability by insurers. The widespread misunderstanding of how the inevitable accident defence should be applied contributes further to the costly inefficiencies present in the claims settlement and recovery process and results in wasted time, resources and unnecessary litigation.

In the field of insurance claim recoveries the defence if ‘inevitable accident’ is universally and doggedly raised by claims officers to deny liability where an insurance claim involves a negligent third party that asserts to have experienced a medical or physiological episode during the claim event, regardless of the medical history of the negligent party.

Hopefully the following expert advice from Mason Black Lawyers will help in some small way to improve our overall understanding of when and how to correctly apply the inevitable accident defence to reduce the time and costs required to effectively settle these claims. 

The Defence of Inevitable Accident – where does the standard of proof lie?

The defence of ‘inevitable accident’ is most frequently raised when a person blacks out or suffers some type of seizure and causes a collision.  It is raised to deny liability and, if successful, the court would uphold that despite the exercise of reasonable skill and care, a defendant was unable to prevent an accident occurring.

However, it is not an easy defence for an insurer to win, as Brett Turnbull of Mason Black Lawyers explains.

What are the obligations of an insurer using inevitable accident as its defence?

The insurer must prove that the insured (the defendant) was not liable for the collision because of the reasons outlined above. The insurer needs to carry out substantial enquiries to determine:

  1. Whether or not the defendant knew/should have known of the illness or condition which caused the black out.
  2. If the defendant knew/should have known, what steps they were using to control this risk.
  3. Were there any circumstances before the defendant drove the car which indicated an increased risk of a black out?


What are the obligations of the insurer seeking recovery?

The insurer must prove negligence, otherwise the defendant’s insurer is not required to prove inevitable accident. But once the defendant’s insurer does deny liability, the recovery insurer should establish whether it appears that the defendant:

  1. Had previously suffered from the condition which caused the black out.
  2. Was being treated for this condition.
  3. Should have appreciated an increased risk of black out but still proceeded with the journey.
  4. Took all reasonable steps but still suffered the black out.

In the case of Dowsing v Goodwin (1998) 27 MVR 43, an unreported decision of the Supreme Court of NSW Court of Appeal, Mason P held that:

“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. For some conditions if a driver knew or had reasonable cause to believe that he was subject to black outs, it would have been an act of negligence to have driven a motor car at all. For other conditions reasonable care would consist of taking reasonable precautions before getting behind the wheel on a particular occasion.”

The defence of inevitable accident failed, and this case demonstrates that defendants must reasonably prove they had no knowledge of the possibility of a black out, they had no previous symptoms and there was no reason to expect a black out could occur.

Although the courts have dealt with many defences of inevitable accident, they have been slow to uphold them. Two successful defences were: a person suffered a cardiac failure for the first time without any previous heart conditions; a person was suddenly stung by a bee which caused them to lose control.

However, the court dismissed another defence when a person suffered cough syncope (The temporary loss of consciousness upon coughing) because the driver had ample opportunity to stop before becoming unconscious, and also dismissed a defence of a sudden hypoglycaemic attack because the defendant was aware of the risk and failed to control it.


What documentation is required to prove inevitable accident as a defence?

  • A medical report stating the defendant could not have known they might suffer the black out. 
  • Driver’s statement that they could not have known a black out could occur.
  • Ambulance report noting the blackout was sudden and unexpected.
  • Hospital admission forms noting the defendant could not have anticipated the black out.
  • General practitioner records confirming the defendant had no previous treatment for the illness that caused the black out.
  • Police report.


Who has the greater standard of proof?

The recovery insurer must prove the defendant was negligent. The facts of the collision may be clear, for example, where the defendant lost control of the vehicle and collided with a parked vehicle or building. If negligence is proven, the defendant’s insurer must prove inevitable accident.

Proof is required on a balance of probabilities, and we consider the defendant’s insurer has the greater difficulty in proving the defendant was not negligent.

The following outlines some specific cases, both successful and unsuccessful, where the courts considered the defence of inevitable accident:


Successful Cases

Loss of control due to cardiac failure

Smith v Lord [1962] SASR 88

The driver suffered a black out and lost control of his vehicle due to cardiac failure on the way to his doctor. He had arranged to visit his doctor two days earlier due to breathlessness, but did not have a long history of heart problems.


Cardiac event

Collins Transport Group Pty Ltd v Kerry Logistics (Australia) Pty Ltd [2006] SADC 124

The truck driver suffered a cardiac event, passing out and colliding with another truck. Expert cardiologist evidence found the driver had insufficient time to react as it took only 2-5 seconds to pass out, therefore the collision was unavoidable.


Unsuccessful Cases

Attack of cough syncope

Leahy & South Australia v Beaumont (1980) 27 SASR 290

The driver suffered cough syncope, lost control and collided with a shop after driving 80 metres before losing consciousness. The driver was judged negligent because he had ample opportunity to stop.


Sudden Onset of Hypoglycaemic Attack

Dowsing v Goodwin (1998) 27 MVR 43

The 33 year old female driver suffered a sudden hypoglycaemic attack, however had the condition since childhood. Her blood sugar levels were of concern weeks before the accident, and she was found negligent for not taking reasonable steps to ensure the attacks did not occur.


Heart attack

K & S Freighters Pty Ltd v Nelmeer Hoteliers Pty Ltd - BC 200103009

An unreported decision of the Supreme Court of New South Wales Court of Appeal. The court found the driver who suffered a heart attack had a known history of chest pain which had previously progressed to a serious heart attack. There was sufficient warning that something was amiss, so his defence was dismissed.


Suicide/Black out

Murray's Transport NSW Pty Ltd v CGU Insurance Ltd [2013] SASCFC 100

The court found the onus of proving that negligent driving caused the accident rested with Murray’s Transport. Evidence concerning the possibility of an acute cardiac event is not sufficient to exclude a finding, on the balance of probabilities that the accident was caused by the negligence of the driver.

The court held CGU had not discharged its onus of proving suicide and the application of the policy exclusion. Murray's Transport had discharged its onus to prove the accident came about as a result of the driver’s negligence.