Recent WA and NSW CTP decisions relating to assessment of liability and contributory negligence

Recent decisions of the District Court of WA, the WA Court of Appeal and the NSW Court of Appeal provide interesting reading and guidance as to assessing liability and contributory negligence, particularly as to whether the driver of a vehicle should bear greater responsibility than a pedestrian because a vehicle has the ability to cause more harm to the pedestrian.

In O’Connor v Insurance Commission of Western Australia [2016] WASCA, delivered 9 June 2016 the WA Court of Appeal upheld the District Court Trial Judge’s apportionment of liability of two-thirds against the deceased, who was struck by a bus.

The deceased was walking on a dark night on an unlit road. He was wearing dark clothing and had his back to traffic and he was intoxicated. The bus driver had failed to see the deceased until after he had struck him.

The learned Trial Judge found the deceased was “significantly more to blame” than the driver for “bringing about a circumstance in which this tragic event occurred, and failing to react to save himself”. It was observed that the deceased “for his part made significant departures from what a reasonable person would do to be as safe as possible in the circumstances”.

At paragraph 82 His Honour Justice Buss stated:

“Secondly, as I have mentioned, counsel for the appellants’ submission that, as a matter of principle, where a finding is made that the driver of a motor vehicle should have seen a negligent pedestrian, the apportionment between the driver and the pedestrian ‘will always be in favour of the pedestrian because a motor vehicle has the capacity to do more damage’, is misconceived.”

the trial judge in O’Connor also stated:

“The harm that can be done by any activity is recognised as relevant for the purposes of determining and assessing a breach of a duty of care. A driver of a motor vehicle in busy traffic or in suburban side streets may have to be aware of the erratic or careless behaviour of pedestrians or children in order to adjust the manner of driving accordingly. I do not consider that these authorities have any direct bearing on the facts of this case”.  

The views expressed by the WA District Court and the WA Court of Appeal with regard to apportionment of liability in O’Connor can be compared to those expressed recently by the NSW Court of Appeal in Boateng v Dharamdas [2016] NSWCA 183 delivered 2 August 2016.

The NSW Court of Appeal upheld the Trial Judge’s decision that the driver of a taxi was 60% liable when he struck a pedestrian who stepped into his path moments before the crash.

At paragraph 72 of its judgement the NSW Court of Appeal stated:

In Warth v Lafsky at [56] McColl JA observed that notwithstanding the conclusion in Derrick v Cheung [2001] HCA 48; 181 ALR 301, it is accepted that drivers must take into account the possibility of careless behaviour by pedestrians and the fact that they are in charge of frequently lethal machines…”

As to apportionment of liability, the Court of Appeal stated:

“Importantly, as indicated above, the respondent’s evidence was that once he stepped onto the roadway he only looked straight ahead and, as he approached the middle of Potter Street, he looked to the left for oncoming traffic from that direction. He did not look back to his right for cars turning into Potter Street from Bourke Street. His culpability was reasonably high. However, the contribution by the appellant to the occurrence of the collision was no less significant. The appellant’s culpability was also high taking into account to the conditions at the time, namely daylight, the range of visibility, and the fact that the appellant did not observe the respondent until the collision had occurred. As the driver of a vehicle which can cause significant damage by impact with pedestrians, the assessment that the appellant’s culpability was slightly higher than that of the respondent was not outside an appropriate range. In my opinion, no error has been demonstrated in his Honour’s assessment of the respondent’s contributory negligence as 40 per cent.” (our emphasis).

These recent WA and NSW decisions provide interesting reading and points of comparison.

The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.