Hit in Emergency Lane

Take Photographs Before You Move Your Car After An Accident

In the recent case of Singh v Ward [2022] VSC 155 (29 March 2022) a driver, Mr Singh, was driving on a busy highway outside of Melbourne when he needed to pull over to help attend to his distressed daughter who was in the back seat. He pulled over into the emergency lane to let his passenger take over the driving. He pulled over, stopped, and got out of the car and started to walk towards the front of his car when he was suddenly hit by a car coming from behind that had drifted into the emergency lane. In the accident Mr Singh suffered a fractured leg and other injuries. Mr Singh sued the other driver for damages for compensation for his injuries.

Disputed Position of The Car After The Accident

The position of Mr Singh’s vehicle on the road after he had pulled over was an important issue and was disputed . Just how far into the emergency lane had Mr Singh pulled into. Had he pulled sufficiently into the emergency lane such that it was safe to exit his car and walk around to the passenger side.

Unfortunately after being hit in the emergency lane the car had been moved.

That meant that years later the Court had to try and work out where Mr Singh had parked. They looked at the evidence of the parties, the Police reports, statements given to investigators, the debris on the road and the damage to the vehicles. That is not an easy process. That process also takes time and can be very expensive. Both drivers faced cross examination at the trial. Given that the accident had happened many years before the claim got to the trial, issues of credibility and reliability were raised.

Car moved and hit in emergency lane

The position of the cars at the time of impact was the issue in contention

A long Time To Get A Court Decision

After many years, and after going through a contested trial, the Court eventually decided that Mr Singh had stopped within the emergency lane and with sufficient room for him to safely walk around to the front of his car. On that basis the Court said that the overtaking driver was negligent by drifting into the emergency lane. But, the overtaking driver argued that Mr Singh should not have stopped on the highway at all. The Court held that it was the right decision for Mr Singh to pull over: he was distracted by a crying baby and it was therefore safer to pull over rather than to continue driving while distracted until he could exit the highway at the next off-ramp.

The Defendant also argued that Mr Singh should have switched on his hazard lights after pulling over. The Court said that Mr Singh’s car was perfectly visible and that hazard lights would not have made any difference. But, the Court did find that by pulling over and allowing only about 1 metre between the emergency lane and the highway, when he could have pulled over even more and onto the grass, that Mr Singh was contributory negligent. The Court reduced Mr Singh’s compensation by 10%.

What Should You Do If You Are In An Accident Like This?

While this case is interesting when considering what a driver should do when stopping in an emergency lane. The real lesson is simpler: if you are in an accident before then you move your car take photographs. This claim took years to get to Court. Lian Hall Injury Law wonders whether the claim for compensation could have been settled much earlier had there been clear evidence about where Mr Singh had stopped his car. Instead of putting the Court in a position of having to work out where the car was parked by hearing from witnesses, considering police reports and damage reports, the parties would have been greatly assisted by photographs of the position of the car before it was moved.