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March 21, 2018

Pedestrian win but 80% contributory negligence



Davis v. Swift [2014] NSWCA 458

On 20 March 2009 the appellant pedestrian was injured when a motor vehicle driven by the Respondent ran over her right foot after the appellant attempted to cross Vincent Street in Cessnock.

At the relevant time each curb side lane was occupied by parked vehicles. The Respondent’s vehicle was parked on the eastern side of the street facing south when the appellant decided to cross the street from its eastern side. She stepped off the curb in front of the Respondent’s parked vehicle and walked to the middle of the road.

At that point traffic travelling in the outside northbound lane made it unsafe for her to proceed further. The appellant ran or stepped backwards very quickly without looking into the southbound traffic lane and into the path of the Respondent’s vehicle.

The appellant brought proceedings against the Respondent for negligence and, in the alternative, on the basis that her injuries were the result of a “blameless motor accident” within the Motor Accidents Compensation Act 1999 NSW. 

The primary Judge found it was a blameless accident and assessed contributory negligence at 100%.

The independent evidence was that the appellant was walking backwards towards the front right of the Respondent’s car; the car was barely moving; that it had pulled about half a metre; that the events happened very quickly and that the first time he saw the appellant was in the vicinity of the right hand front headlight of the Respondent’s vehicle.

The Court held by majority that the evidence did not justify a finding that from the Respondent’s position in the driver’s seat had she looked forwards, backwards and forwards as she asserted she must have seen the appellant in time to take some action to avoid colliding with her. The appellant’s behaviour involved a significant departure from the standard of care expected.

However, it was not an example of the worst possible case and damages were to be reduced by 80%.

The Court of Appeal held that the primary Judge did not err in not inferring fault on the part of the Respondent. The Court held the accident was the result of both the appellant’s conduct in walking backwards into the pat of the respondent’s vehicle but also the respondent’s conduct of driving out from the kerb. Contributory negligence was assessed at 80%