As Victorian roads get more congested and drivers appear to be more distracted, it seems that crashes involving multiple vehicles are becoming more common. But when there has been a crash of more than two cars in a row, how does the law divide responsibility for the injuries and loss that follow? How will TAC benefits or common law damages be decided when multiple parties are involved?
Two weeks ago, as I drove in to Polaris’s offices in the CBD, the car radio announced something which was mundane to me, but life-changing to those involved; “there’s been a pile-up on the Monash”.
One car brakes suddenly and the driver of the car behind it does not react in time. In a matter of seconds, several cars have collided with each other. Drivers and passengers are injured.
Should responsibility be with the driver who first caused the collision, or should the subsequent drivers be keeping a proper lookout so that they can avoid the collision?
The County Court of Victoria examined this situation in a TAC claim for compensation brought by Mr Becka in the August 2022 judgment of Becka v Tuppen  VCC 1378.
The crashes that led to injuries and TAC claims
On the morning of 13 June 2013, Aleksander Becka was driving to work as tiler. He left his home in Greendale and drove on to the Western Ring Road, on his way to a job in Point Cook.
It was a rainy morning and the road was wet.
Just moments earlier, there had been a collision on the Ring Road, when Deanne Tuppen’s vehicle collided with a car driven by Bohdan Waysl.
As Mr Becka drove from the Ring Road onto the exit, he encountered a traffic jam caused by the collision between Tuppen and Waysl. He applied the brakes and lost control of the van, causing it to hit a stone bride and flip.
There was a 4 minute gap between the first collision and Mr Becka’s crash.
Who was at fault for the injuries suffered by Mr Becka?
Negligence – who was at fault?
While the TAC indemnified all of the parties involved in the crash, Mr Becka could only obtain compensation for pain and suffering and economic loss (a TAC common law claim) if he could establish that the crash was caused by the negligence of someone else.
Should a Court find that Ms Tuppen or Mr Waysl were at fault for causing the first crash and for creating the hazard which led to Becka’s crash?
Or should the Court find that Mr Becka’s loss of control arose from a new set of circumstances, where he had caused his own loss and injuries by failing to keep a proper lookout?
During the hearing of the case, the Court directed that the claim against Mr Waysl be dismissed. He was, on the limited evidence available to the Court, hit as Ms Tuppen verged into his lane and caused his vehicle to run off the road. There was no evidence that he was negligent in causing the first collision.
The TAC maintained an argument that Ms Tuppen should not be held responsible for the injuries to Mr Becka. They argued that Mr Becka’s failure to keep a proper lookout for the traffic ahead of him was a “new intervening event”.
Lawyers for Mr Becka argued that the chain of causation had not been broken: that Ms Tuppen’s negligence caused the hazard which led to Mr Becka’s crash and injuries.
The parties were in dispute about the conduct of Mr Becka leading to the crash, including;
- the speed of his van;
- the distance between him and the vehicle in front of him;
- the view he had, and his awareness of the traffic conditions; and
- his reaction to the build up of traffic.
The Court’s findings about each of these questions would be central to making a determination about whether Mr Becka’s collision was part of the chain of events started by Ms Tuppen, or was a new event caused solely by Mr Becka’s negligence.
The Jury tasked to determine negligence and compensation
A jury of 6 were tasked with making a finding about negligence and also to award compensation (common law damages) if they formed the view that Mr Becka’s injuries had been negligently caused.
After 4 days of deliberation, the jury were unable to reach a verdict.
Judge Purcell gave them a direction to persevere. The next day they were still unable to reach a unanimous verdict. The Court indicated that it would accept a majority verdict (of 5 jurors). Despite this, the jury informed the Court that it could not reach a majority verdict.
The jury was then discharged and the parties agreed that Judge Purcell would decide the case without the jury.
Legal Principles regarding factual causation
The Court reiterated that the duty of a motorist to other road users is a well-established general principle.
On that basis the Court found that Ms Tuppen owed a duty of care to Mr Becka and other road users, and that the scope of that duty extended to Mr Becka’s collision.
What was more hotly contested were the application of legal principles regarding “factual causation”. Factual causation is sometimes called the “but for” test – but for Ms Tuppen’s negligence would Mr Becka’s crash have occurred.
The Defendant’s argument was that the way Mr Becka drove his vehicle (and the failure to react to a build-up of traffic) was the sole cause of the collision and that Ms Tuppen’s negligence was not a cause.
The Court did not accept that argument, finding that the negligence of Ms Tuppen had created a hazard that required other vehicles to brake to avoid a collision. The Court found that Mr Becka had not driven in a way to break the connection between the hazard and his own injuries.
His driving, while contributing to the cause of the accident, was not reckless, at excessive speed or affected by drugs or alcohol.
The collision was a foreseeable consequence of the hazard caused by Ms Tuppen and that hazard was still in play when Mr Becka had his collision.
As Judge Purcell succinctly put:
The real issue, in my opinion, is not factual causation, but one of contributory negligence.
The Court’s determination
Judge Purcell, on several occasions, noted that there was limited evidence tendered by the parties about the circumstances of the crashes.
The Court found that the chain of causation had not been broken and that Ms Tuppen remained legally liable for injuries and loss which flowed from the hazard which her negligence had caused.
Judge Purcell did however find that the evidence Mr Becka gave about his movement before the collision was “unconvincing” and “unreliable”.
Compensation reduced due to contributory negligence
It was found that Mr Becka had contributed to his injuries and loss by his own negligence.
As a result, while finding in favour of Mr Becka, Judge Purcell reduced his entitlement to compensation by 50% to reflect Mr Becka’s contribution to the crash
Compensation was paid to Mr Becka in the amount of $161,655 – being $135,000 for pain and suffering, $188,310 for economic loss, less 50% for his contribution to the accident and injuries.
You can read more about contributory negligence in our article, “TAC claims – contributory negligence explained”.
The decision in Mr Becka’s case is helpful to both legal practitioners and people affected in multi car collisions.
While not creating new law, the case applies existing principles in a new way to show that time and space between two negligently caused events may still be related, and that more than mere carelessness by a driver is needed to break the causal link to a hazard created by another motorist.
The case is also a helpful reminder of the way that Court’s weigh the relative contribution of two parties in causing loss or injury, and how compensation can be reduced to account for the negligence of a Plaintiff to their own injury or loss.
Lastly, the judgment serves as a useful reminder about the importance of experienced personal injury solicitors preparing a claim for compensation thoroughly and marshalling all available evidence about the factual circumstances surrounding a collision.