Recently, the New South Wales Court of Appeal was required to determine liability for an accident between a car and a cyclist, where neither party could prove that they had the green traffic light (Cheng v Geussens, NSW Court of Appeal, 8 April 2014).

Mr Cheng (the cyclist) and Mr Geussens collided at the intersection of Coogee Bay Road and Carrington Road at Randwick. Both said that they had green lights, which was not possible. Neither saw the other until very shortly before the impact.

Neither party’s evidence of the accident could be preferred. The plaintiff, Mr Cheng, had the onus of proof but Mr Cheng failed to prove on the balance of probabilities that he had a green light.

If Mr Cheng’s only allegation of Mr Geussens’ negligence was Mr Geussens’ failure to give way at the red light, then Mr Cheng would have had to prove that Mr Geussens had the red light and Mr Cheng’s failure to establish that he faced the green light would have defeated his claim. However, Mr Cheng’s allegations of negligence against  Mr Geussens included a failure to keep an adequate lookout.

The Court of Appeal determined liability on the basis that the state of the lights was unknown and therefore Mr Geussens was liable for his failure to keep an adequate lookout. That also meant that the court needed to look at whether Mr Cheng also contributed to his damages by his own negligence, with the Court finding that Mr Cheng was also negligent in failing to keep a proper lookout.

In assessing the apportionment of liability in this case, the court found that Mr Cheng had the greater liability. Immediately before the impact, Mr Geussens was travelling through the intersection at a reasonable speed but Mr Cheng had not left the footpath. Had they both looked properly, Mr Geussens still may not have been able to stop in time, but it could have been expected that Mr Cheng would not commence to cross in front of a travelling vehicle. The court apportioned 67% liability to Mr Cheng, reducing his damages by 67% to account for his contributory negligence.