In this NSW Court of Appeal decision, the majority overturned the primary judge’s finding of contributory negligence against a pedestrian plaintiff of 40%, increasing it to 75%. The court held that s5R of the Civil Liability Act (NSW) 2002 requires people to take responsibility for their own safety – putting in doubt the approach taken by the courts in earlier authorities where it was held that the relevant culpability of a driver of a motor vehicle is inherently more dangerous and therefore higher than that of a pedestrian.

The facts

The accident had been captured on CCTV footage so there was little dispute as to the facts.  At 12:50pm on 6 October 2008 (a public holiday) a taxi owned by the appellant (the taxi) was being driven west down Market Street Sydney. There were many pedestrians crossing the street against the signals, so many that this formed a subject of discussion between the taxi driver and his passenger. As the taxi approached the intersection with George Street he was facing a green light. Two men ran across the road in front of him, against the red pedestrian signal. The taxi was travelling at or about 50km/hr and did not reduce its speed as it proceeded towards the intersection, merely sounding its horn as it missed the two men by a few centimetres. As the taxi crossed the intersection, approximately 3 seconds later, the respondent’s son, Scott Chivas, also ran onto Market Street against the pedestrian lights. Despite then braking immediately, Scott Chivas collided with the taxi and lost his life.

The respondent brought a claim for nervous shock.

The decision at first instance

The trial judge held that the driver of the taxi was negligent, assessing damages at just under $800,000 which were reduced by 40% for contributory negligence.

The decision on appeal

On appeal the appellant challenged both the finding of negligence against the taxi driver and the apportionment of contributory negligence. The court unanimously held that the finding of negligence against the taxi driver was appropriate in the circumstances. Given the number of pedestrians and the nature of the environment (being a busy city area) the driver should have proceeded more cautiously at a speed closer to 40kph rather than the 50kph he was travelling. Had he braked immediately, not emergency braking, just slowing down, the deceased would have had sufficient time to clear the taxi’s lane and the accident would have been avoided.  

The court differed in its approach to contributory negligence.

The majority decision as to contributory negligence (Basten and Barrett JJA agreeing)

The majority held that the trial judge had correctly applied the relevant legal principles to be applied as s5R of the Civil Liability Act and s138 of the Motor Accidents Compensation Act 1999 (NSW). However, they were critical of the trial judge’s reliance on decisions that pre-dated these legislative changes holding that:

Caution is necessary with respect to the authorities which pre-date the Civil Liability Act.  Reference to the “common law rules of contributory negligence” must also be viewed warily. (Even under the common law reference to ‘rules’ as opposed to ‘principles’ was frowned on.

In holding that contributory negligence is now a product of statute rather than common law, the majority held that he trial judge’s reliance on the decision of Joslyn v Berryman [2003] HCA 31 was incorrect, particularly as McHugh was, in that decision, also considering superseded legislation (Motor Accidents Act 1988 (NSW)).

The majority held that the test in s5R(1) of the Civil Liability Act applied requiring the court to weigh the actions taken by the deceased “against the risk of that harm” equally with those taken by the driver:

The significant, if subtle, change of emphasis which arises from the enactment of the Civil Liability Act raises a doubt as to the emphasis in past cases placed on the capacity of a motor vehicle to cause far greater damage, when compared with the capacity of a pedestrian to cause damage. That factor should be understood from the perspective of both the driver and the pedestrian, rather than as an independent consideration. To treat it as an independent consideration may lead to the conduct of the driver being judged against a higher standard than that of the pedestrian. Each should be equally conscious of that factor and adjust his or her behaviour accordingly: the driver by taking greater care for the pedestrian; the pedestrian by taking greater care for his or her own safety. 

The fact that the deceased suffered from Asperger’s syndrome and that this potentially affected his ability to appreciate the danger in which he was placing himself was not raised at trial or on appeal. The court noted that the extent to which a person’s disability could be taken into account when assessing contributory negligence would have to await consideration in another case.

Ultimately the ‘weighty factor’ in assessing contributory negligence was the deceased’s decision to cross the road against the red pedestrian signal in the face of oncoming traffic. In all of the circumstances, this warranted an increase in the assessment of contributory negligence to 75%.

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