Contributory negligence – relative culpability of pedestrian and driver
July 23, 2014
T and X Company Pty Ltd v Chivas  NSWCA 235 (22 July 2014)
Yesterday, the New South Wales Court of Appeal handed down judgment in this case which reconsiders the principles governing contributory negligence in motor vehicle accidents. Our Newcastle office conducted the appeal successfully for the insurer, with the Court of Appeal almost doubling the blame apportioned to the careless pedestrian.
On 6 October 2008, a taxi owned by the appellant (T and X Company Pty Ltd) was driving west down Market Street, Sydney. It had a green light permitting it to cross George Street. As it approached the intersection, two young men ran across Market Street, ignoring the red pedestrian light. The driver did not alter his speed and proceeded to drive across the intersection. Three seconds after the first man stepped off the pavement, a third man (the deceased) ran across Market Street and was fatally injured when hit by the taxi.
The deceased’s mother brought a claim for nervous shock in the District Court. The trial judge, Bozic DCJ, found that the driver of the taxi was negligent but reduced the plaintiff’s damages by 40% for the deceased’s contributory negligence.
On appeal, the Court of Appeal upheld the trial judge’s findings regarding breach of duty and causation but set aside his findings on contributory negligence, increasing the apportionment to 75% on the part of the deceased. The relevance of the judgment is twofold: firstly with respect of liability and secondly in assessing contributory negligence.
The appellant argued that even if the taxi had been travelling at a reduced speed, the outcome would have been no different in that the collision would still have occurred and therefore the trial judge erred in finding that the driver of the taxi was negligent in failing to reduce his speed.
The Court of Appeal unanimously upheld the trial judge’s conclusion that the driver of the taxi was in breach of duty with respect to pedestrians in the vicinity of the intersection by failing to reduce his speed. In particular, the risk of jaywalking had been identified by the taxi driver in conversation with his passenger as he proceeded down Market Street.
The Court of Appeal considered the older cases like Pennington v Norris  96 CLR 10 which have held that the culpability of the driver of a motor vehicle should be greater than a pedestrian because of the potential of significantly greater harm to others if the driver fails to take care, and how that line of authority sits with the current statutory scheme, in particular section 5R of the Civil Liability Act 2002 (NSW) (‘CLA’) which reflects an expectation that people are to take responsibility for their own lives and their own safety.
Basten JA, with whom Barrett JA agreed, identified that 5R has made a ‘significant, if subtle, change of emphasis’ when assessing culpability. In Basten JA’s opinion, a pedestrian and a driver should be ‘equally conscious’ of the risks and adjust their behaviour accordingly: the driver by taking greater care for the pedestrian, and the pedestrian by taking greater care for his or her own safety. In saying this, Basten JA found that the trial judge had incorrectly placed a greater share of responsibility on the driver than the pedestrian, the driver having been aware of the risks of jaywalking and driving at an excessive speed in the circumstances.
In determining apportionment, Basten JA considered a ‘weighty factor’ was the ‘unpredictable’ step taken by the deceased in seeking to cross the road against a red pedestrian light and in the face of oncoming traffic. The conduct warranted an increase in contributory negligence to 75% on the part of the deceased.
In her dissenting judgment, Beazley P affirmed that the damage that a motor vehicle may do to a pedestrian remains significant when determining contributory negligence under the CLA, noting that ‘the case law has continued to recognise the relevance of the harm that can be done by a motor vehicle for the purposes of determining breach of duty of care’. Accordingly, while she found that the deceased either acted with a high degree of carelessness or made a serious error of judgment, the likely seriousness of the harm in the driver not slowing was such that he should bear a high proportion of the blame for the accident.
The decision indicates that the effect of 5R of the CLA is to apportion equal weight to the responsibility drivers and pedestrians must exercise for their conduct and that both parties must be conscious of the risk of an accident and adjust their behaviour accordingly.
When assessing contributory negligence in like cases, CTP Insurers should be conscious of the Court’s expectation that all road users, including pedestrians, are to take responsibility for their conduct, and that the task of apportionment should not start from the premise that in all cases a driver at fault will be more to blame than a pedestrian who acts recklessly.
Authored by Mark Malley, Partner, Newcastle.
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