Contributory negligence and the ‘good Samaritan’ provisions of Civil Liability Act 2002 apply

Motor Vehicle Directions

Stuardo bht Pinochet v Borsellino [2012] NSWDC 9 (per Levy DCJ) 17 February 2012

Background

On 5 November 2007, the plaintiff (a 14 year old high school student) was injured in a motor vehicle accident that occurred near a bus parked at a bus stop on Bunker Parade, Bonnyrigg NSW. At the time of the accident the plaintiff and his younger sister had walked some metres away from the front of a stationary bus with the intention of crossing the road. The plaintiff’s sister walked forward into a position on the road near passing traffic. The plaintiff moved forward to grab his sister and pull her away from the path of the traffic, and in doing so the plaintiff was struck by the defendant’s car. The plaintiff sustained an injury to his back. The defendant denied she was at fault, but in the alternative, alleged the plaintiff had been guilty of contributory negligence.

The decision

Levy DCJ found the defendant was negligent.

His Honour found if the defendant had been driving in a prudent manner and had been keeping a proper lookout as she drove, she would not only have seen the stationary bus at the bus stop, but would have also seen the school children near the front of the bus and should have reduced her speed and adjusted her road position so she was ready to take evasive action if required. In his Honour’s view, the defendant ought to have adopted a state of vigilance and kept close watch on the road in front of the bus, as she would have seen the plaintiff’s sister walking towards a collision course with her vehicle. His Honour found the accident was caused by the defendant’s failure to reduce her speed and her subsequent failure to swerve and take evasive action.

In determining whether there was contributory negligence on the part of the plaintiff, his Honour found that although the plaintiff had earlier intended to cross the road at or near the point where the accident had occurred and had probably intended to cross the road in front of the stationary bus, he was not pursuing the intended course at the time of the accident. His Honour found the plaintiff had interrupted the intended course by looking to see if it was safe to proceed, and the only reason the plaintiff was on the road at the location that placed him in harm’s way was that he was attempting to rescue his younger sister from a situation of danger, rather than attempting to cross the road.

In some novel reasoning, and in rejecting the defendant’s alternate argument that the plaintiff was guilty of contributory negligence, his Honour held that the plaintiff’s actions came within the ‘good Samaritan’ provisions of the Civil Liability Act 2002. The ‘good Samaritan’ provisions found at Part 8 of the Act provide:

For the purposes of this Part, a ‘good Samaritan’ is a person who, in good faith and without expectation of payment or other reward, comes to the assistance of a person who is apparently injured or at risk of being injured’ (s56).

‘A good Samaritan does not incur any personal civil liability in respect of any act or omission done or made by the good Samaritan in an emergency when assisting a person who is apparently injured or at risk of being injured’ (s57).

His Honour held the plaintiff met the requirements of the ‘good Samaritan’ provisions and in the circumstances, because as a result he could incur no personal civil liability, he could not be guilty of contributory negligence.

In the event of an appeal, and against the possibility of a later finding that when struck, the plaintiff had been attempting to cross the road (rather than trying to rescue his sister from danger), his Honour indicated that he would have assessed contributory negligence at 50 percent.

He awarded damages of just under $94,000, mainly comprised of future loss of earning capacity and superannuation ($88,000).

As the plaintiff was under 16 at the time of his injury, aspects of his damages were already quarantined from reduction for contributory negligence by Section 7J of the Motor Accidents Compensation Act 1999, which does not appear to feature in the judgment. That section provides that where the injured claimant is under 16 years of age at the date of accident, any damages for treatment, rehabilitation and care (‘special entitlement’ damages) are not to be discounted for contributory negligence. That ‘special entitlement’ damages were such a modest part of this judgment (under $6,000) perhaps explains why the judge overlooked it.

Comment

Perhaps, as the trial judge found the plaintiff hadn’t been attempting to cross the road when struck, but had been attempting to protect his sister from harm, then even without invoking the good Samaritan provisions, on those factual findings, it was open to his Honour to find that the plaintiff’s actions were reasonable, and he hadn’t been guilty of contributory negligence.

The ‘good Samaritan’ provisions were applied in the case to avoid making a finding of contributory negligence, and that is, as far as we know, a novel approach. We doubt parliament contemplated the section would be applied in that way. In the second reading speech for the Civil Liability Amendment (Personal Responsibility) Act 2003, the Minister said the provisions would ‘protect the good faith actions of good Samaritans who come to the assistance of a person in danger. This will mean no liability for voluntary rescue organisations, such as surf life saving clubs, if a person is injured in the course of or in connection with a rescue. Individual volunteers will also be protected from law suits where their actions were done in good faith’.

It will be interesting to see whether an appeal eventuates.

Authored by Moray & Agnew. For further information please email: editor@moray.com.au


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