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Stone, Andrew --- "When Pedestrians and Vehicles Collide: Assessing Contributory Negligence" [2021] PrecedentAULA 6; (2021) 162 Precedent 20

WHEN PEDESTRIANS AND VEHICLES COLLIDE

ASSESSING CONTRIBUTORY NEGLIGENCE

By Andrew Stone SC

This article explores the historical background to the judicial assessment of contributory negligence in pedestrian cases, the differing views in the NSW Court of Appeal regarding the application of s5R of the Civil Liability Act 2002 (NSW) (CLA) to those cases, and how those differing views may ultimately be resolved.

The CLA introduced specific statutory provisions with regard to contributory negligence. Section 5R of the CLA relevantly provides:

‘Standard of contributory negligence

(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2) For that purpose–

(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and

(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.’

The NSW Court of Appeal has taken differing views as to the application of s5R in cases involving pedestrians injured in motor vehicle accidents and in relation to contributory negligence more generally. Recently, the overall trend appears to be leading towards emphasising the importance of individuals taking care for their own safety and thus higher assessments of contributory negligence.

BACKGROUND

Prior to the introduction of s5R, the only statutory direction as to the assessment of contributory negligence was the requirement to consider what was ‘just and equitable having regard to the claimant’s share in the responsibility for the damage’ in the circumstances.^[1]

When it comes to the component elements for considering what is ‘just and equitable’, the leading authority continues to be the formulation of the High Court in Podrebersek v Australian Iron and Steel Pty Ltd.^[2] The Court determined:

‘The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie. of the degree of departure from the standard of care of the reasonable man ... and of the relative importance of the acts of the parties in causing the damage ... It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.’^[3]

The two touchstones of an assessment of contributory negligence remain the concepts of ‘relative culpability’ and ‘causal potency’.

PEDESTRIAN vs MOTOR CAR: THE HISTORIC APPROACH

Courts have traditionally placed greater responsibility on the errant driver rather than the errant pedestrian when the two come into contact. The cases of Pennington v Norris^[4] and Talbot-Butt v Holloway^[5] illustrate the historic approach.

Pennington v Norris

In this case, the plaintiff pedestrian was run down by a motor vehicle on a wet and misty night in Burnie, Tasmania. The defendant driver was proceeding past a series of hotels, which indicated the prospect of pedestrians being out and about. The plaintiff, who could not remember the events, crossed the road in front of the defendant’s vehicle.

The trial judge and the High Court accepted that both the defendant and the plaintiff were partially at fault. The trial judge assessed the plaintiff’s contributory negligence at 50 per cent.

The High Court (Dixon CJ, Webb, Fullagar and Kitto JJ) took a different view, commenting:

‘The plaintiff’s conduct was ex hypothesi careless and unreasonable but, after all, it was the sort of thing that is very commonly done: he simply did not look when a reasonably careful man would have looked. We think too that in this case the very fact that his conduct did not endanger the defendant or anybody else is a material consideration. The defendant’s position was entirely different.’^[6]

Given the unfavourable driving conditions (it was a misty night and the road was wet) and the defendant’s speed of 30 miles per hour – which the Court found to be a dangerous speed in the circumstances – the High Court reduced the plaintiff’s contributory negligence to 20 per cent.^[7]

Talbot-Butt v Holloway

The plaintiff pedestrian was running across William Street, Darlinghurst when he was run down by a motor vehicle driven by the defendant. The defendant driver had an estimated blood alcohol reading of 0.0525 per cent (just over the legal limit of 0.05 per cent), while the pedestrian’s blood alcohol reading was estimated at 0.230 per cent.

The trial judge found fault on the part of both the driver and the pedestrian, with the driver being two-thirds responsible and the pedestrian one-third.

In the NSW Court of Appeal, Kirby P and Clarke JA endorsed the trial judge’s apportionment while Handley JA dissented, expressing the view that the pedestrian was primarily at fault and his contributory negligence should have been assessed at 55 per cent. These differing judgments laid the groundwork for what would become more substantial divisions in later opinions from the NSW Court of Appeal.

When considering the causal potency of the respective actions of the parties, Kirby P commented:

‘[a]s many cases demonstrate, it is usually the driver of the moving motor vehicle who enjoys the last opportunity of avoiding collision with a pedestrian on the road ...’^[8]

Acknowledging that individual cases are fact-sensitive, it is nonetheless difficult to see how this view would prevail in modern motor accident law. The temporal gap between the ‘last opportunity’ of the driver (to apply the brakes) and the ‘last opportunity’ of the pedestrian (to avoid running across the roadway) is extremely modest. Both are making decisions within the same few seconds.

President Kirby continued by noting that the ‘responsibility’ of pedestrians to avoid actions which might cause them harm ought ‘not be confused with moral culpability’. He observed of the plaintiff pedestrian that ‘[t]o the extent that she was morally culpable, her injuries suffice to exert their own punishment’.^[9]

Justice Clarke articulated what might in shorthand be referred to as the ‘lethal weapon’ standard for measuring relative culpability, commenting:

‘... it is, in my opinion, important to recognise that the appellant was in control of a motor vehicle which, if not driven carefully, could cause great damage to people and property. Failure by the respondent, on the other hand, to observe due care for her own safety was likely to expose only her to danger.’^[10]

Justice Clarke relied upon South Australian authority and the comment of Zelling J in Evers v Bennett^[11] that:

‘The train of authority over many years is to hold the motorist, who is capable of doing considerable injury to a pedestrian, more culpable than the pedestrian in such circumstances.’^[12]

The dissenting judgment of Handley JA took a distinctly different approach. Justice Handley viewed the plaintiff pedestrian as being the primary contributor to the circumstances of the accident, commenting:

‘The plaintiff having no urgent need to cross the road in front of the defendant’s vehicle created the emergency by deliberately risky conduct. Deliberate acts of negligence whether they involve risk to self, to others, or both attract a greater share of responsibility because the danger they create, and the deliberate creation of that danger, reflect more significant departures from the normative standard.’^[13]

Justice Handley quoted with approval from Lord Pearce in Miraflores v Livanos:

‘It is axiomatic that a person who embarks on a deliberate act of negligence should, in general, bear a greater degree of fault than one who fails to cope adequately with the resulting crisis which is thrust upon him ...’^[14]

In summary, prior to the introduction of the CLA, the approach adopted by courts was generally to apply some form of the ‘lethal weapon’ responsibility on the driver and to (subject to the varying factual circumstances) find a greater proportionate liability on the part of the driver as against the injured pedestrian.^[15]

A CHANGE IN APPROACH

Boral Bricks Pty Ltd v Cosmidis (No. 2)^[16] (Boral Bricks)

The ‘traditional’ approach to the assessment of contributory negligence of pedestrians has faced significant challenge in several more recent NSW Court of Appeal decisions, with the introduction of s5R of the CLA as the transforming factor.

In Boral Bricks, a majority of the Court of Appeal (Basten and Emmett JJA agreeing) concluded that s5R reflected parliamentary intent and policy that people were to take responsibility for their own lives and safety.

In this case, the plaintiff was run down by a forklift on commercial premises. The driver of the forklift was employed by the defendant company.

Justice Basten held that the ‘intended purpose of s5R is clearer than its actual operation’.^[17] His Honour continued that the intent was to treat the assessment of a plaintiff’s contributory negligence in the same terms as the assessment of the defendant’s negligence, in accordance with the general principles set out in s5B (and arguably s5C) of the CLA. His Honour cited the Ipp Report^[18] and the rhetorical question set out in para 8.7:

‘Should the law allow people to take less care for their own safety than it requires others to take for their safety? ... Another way of putting this question is to ask whether the standard of care applicable to victims of the negligent conduct of others should be different from that applicable to the negligent person merely because they are victims?’^[19]

The comment from the Ipp Report that there was a perception that lower courts were ‘more indulgent to plaintiffs than to defendants’^[20] was noted by his Honour. Also noted was the Ipp Report’s view that any approach which placed a greater onus on motorists to keep a better lookout than pedestrians ‘should not be supported’.^[21]

Justice Basten concluded that the intent behind s5R was that people should take responsibility for their own lives and safety and that there was intent to override the approach previously adopted by the courts. His Honour further concluded:

‘If the plaintiff were aware, or ought to have been aware, of the presence of a large forklift operating in the area and if the forklift driver were aware, or should have been aware, of the likely presence of pedestrians, and if each were equally careless, liability should be shared equally.’^[22]

This was described by his Honour as a purposive approach to the operation of s5R.

On the specific facts of the case, the contributory negligence of the plaintiff was assessed by the majority to be 30 per cent. However, it must be noted that this was an industrial accident where the defendant company controlled the system of work at the premises and where there was evidence that there were additional precautions that the occupier could have deployed (including the use of a spotter). Given the earlier cited statement of principle, the same 30 per cent assessment would not necessarily follow in the event of a pedestrian and motorist coming into contact on an open road.

In a dissenting judgment, McColl JA held that s5R ‘says nothing about how, if that issue is determined by a finding adverse to a plaintiff, the relative culpability of the plaintiff and defendant are to be determined’.^[23] Justice McColl referred to the historically significant factors that the driver was in charge of a powerful vehicle, that the pedestrian’s conduct did not endanger the driver or anybody else, and that the plaintiff’s failure to keep a proper lookout should be characterised as an ‘act of momentary inattention’.^[24] Taking those factors into account, as well as the occupier’s responsibility for the system of work, McColl JA assessed the plaintiff’s contributory negligence at 10 per cent.

REASSERTING THE HISTORICAL APPROACH

The Nominal Defendant v Ross^[25]

Judgment in this matter was handed down by a differently constituted bench of the NSW Court of Appeal one month after the decision in Boral Bricks. The lead judgment was from Hoeben JA (Beazley P and Meagher JA agreeing).

The plaintiff was run down by an unidentified minibus outside Sydney Airport, and he sued the nominal insurer of the minibus for damages in negligence. The trial judge found in favour of the plaintiff but applied a 20 per cent deduction to the assessment of his damages on account of his contributory negligence.

Justice Hoeben acknowledged that s5R applied but nonetheless adopted what might be considered the traditional, historical approach:

‘While it may be said that the negligence on the part of the respondent and the driver of the minibus was of a similar kind, that is neither kept a proper lookout, other considerations are also relevant. A failure by a pedestrian to keep a proper lookout might result in injury to himself. A failure by a driver of a large vehicle, such as a minibus, might result in not only injury to himself, but serious injury or death to an innocent party. In that regard, moral culpability weighs more heavily against a driver than against a pedestrian, even though their actions may, to a similar degree, have contributed to the accident. That has been the approach traditionally adopted by the courts.’^[26]

Justice Hoeben ultimately increased the assessment of the plaintiff’s contributory negligence to 35 per cent however still found the minibus driver to be predominantly liable.

T and X Company Pty Ltd v Chivas^[27] (T and X Company)

A pedestrian was run down and killed by a taxi in circumstances where two other pedestrians had run across the road in front of the taxi immediately before that pedestrian. The taxi was proceeding through an intersection with a green light, while the pedestrian was crossing contrary to a red pedestrian light. The pedestrian’s mother sued for mental harm. The trial judge reduced her damages by 40 per cent on account of the pedestrian’s contributory negligence.

The bench in the Court of Appeal comprised of Beazley P, Basten and Barrett JJA. Justice Basten expressed the view that when assessing contributory negligence, ‘[c]aution is necessary with respect to the authorities which pre-date the Civil Liability Act’.^[28] His Honour specifically identified both and Pennington v Norris and Talbot-Butt v Holloway as authorities in that category.

Justice Basten concluded his assessment of contributory negligence by commenting that:

‘The weighty factor in assessing relative responsibility for the accident 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. Giving due respect to the careful reasoning of the trial judge, in my view, according proper weight to that factor in the mix of the identified consideration required a far higher level of contributory negligence. I would assess contributory negligence at 75 per cent.’^[29]

Justice Barrett supported the reasoning and conclusions of Basten JA to create a majority opinion. However, Beazley P dissented by adhering to the traditional view that the driver bears the weight of responsibility when in charge of a motor vehicle. Her Honour concluded:

‘For his part, the deceased acted either with a high degree of carelessness, or made a serious error of judgment in respect of the oncoming taxi. However, the driver of the vehicle not only acted with a high degree of negligence in driving in the manner he did, the likely seriousness of the harm in the driver not taking the precaution of driving more slowly was such that the taxi driver should bear a higher proportion of the blame

for the accident.’^[30]

President Beazley was of the view that while she may have found a higher degree of contributory negligence than the trial judge (although not to the extent found by Basten JA), she did not consider that appellate intervention was warranted.^[31]

RESOLVING THE CONFLICT?

The NSW Court of Appeal has yet to sit a bench of five to address the differing approaches adopted to contributory negligence in cases where pedestrians have been struck by motor vehicles. Nor has the issue been considered by the High Court.

The ACT Supreme Court followed the majority view in T and X Company in Steen v Stenton.^[32] However there have been other cases – both at first instance and on appeal – which seem to hint that not all agree with the approach articulated in T and X Company. There may remain some judicial sympathy towards the traditional view regarding the weightier responsibilities of the driver of a vehicle which can cause significant damage to pedestrians.^[33]

TIPS FOR ANALYSING A PEDESTRIAN vs MOTOR VEHICLE CASE

In cases involving collisions between a pedestrian and a motor vehicle, the starting point is to ask what the pedestrian was doing on a roadway in the vicinity of a motor vehicle and what opportunity existed for the driver of the motor vehicle to avoid the collision.

The opportunities for a driver to observe and avoid a collision with a pedestrian on a roadway are obviously highly variable and fact-specific. However, given the views of the NSW Court of Appeal in T and X Company, it is probably safe to start from the position of a 50/50 apportionment in circumstances where there is equal opportunity for avoidance, and then look at individual factors that tilt or vary that starting assessment in one direction or the other.

CONCLUSION

Whether the traditional approach of placing greater weight and responsibility on the actions of a motorist in charge of a lethal machine continues to carry any weight in the assessment of the contributory negligence of a pedestrian can only be determined with further appellate-level decisions that will either confirm the view of the majority in T and X Company or continue the uncertainty. Only a determination by a bench of five in the NSW Court of Appeal, or a decision by the High Court, can bring this debate to an end.

Andrew Stone SC is a barrister at Sir James Martin Chambers and former ALA National President and NSW State President. EMAIL stone@sirjamesmartin.com.

^[1] Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s9(1)(b).

^[2] [1985] HCA 34; (1985) 59 ALJR 492.

^[3] Ibid, 532 [10].

^[4] [1956] HCA 26; (1956) 96 CLR 10 (Pennington).

^[5] (1990) 12 MVR 70 (Talbot-Butt).

^[6] Pennington, above note 4, 16.

^[7] Ibid, 16–7.

^[8] Talbot-Butt, above note 5, 74.

^[9] Ibid.

^[10] Ibid, 78.

^[11] (1982) 31 SASR 228.

^[12] Ibid, 234.