In Lee v McGrath  ACTSC 173, the ACT Supreme Court was required to determine whether the defendant had been negligent when the plaintiff pedestrian ran across the path of her vehicle.
On the day of the accident the defendant was driving at 60kph on Clift Crescent, Richardson.
After passing a bend in the road she noticed two boys run across in front of her. After reaching the other side of the road they stopped and looked behind them. The defendant took her foot off the accelerator and put it over the brake, in case they returned across the road.
The plaintiff then also ran across the road, into the path of her vehicle, without looking in her direction (evidence was led that he did look to his left, but not to his right where the defendant was coming from).
The plaintiff suffered catastrophic injuries in the accident.
At issue was whether the defendant had breached her duty of care, as well as causation.
Breach of duty
In determining whether the defendant had been negligent, the trial judge was required to consider:
- Whether the defendant ought to have slowed down having regard to the first two boys running across the road.
- Whether the defendant ought to have assumed the possibility of pedestrians due to the presence of a walkway.
- Whether the defendant ought to have seen the plaintiff earlier than she did (and thereby reacted sooner).
The case involved competing expert evidence as to whether the defendant had an opportunity to brake and thereby avoid the collision.
The two experts reached different conclusions as to the path of travel of the plaintiff before the collision, and thereby the point of impact.
The plaintiff's lawyers did not call evidence to suggest her injuries would have been reduced had the defendant's vehicle been travelling at a lower speed.
As to breach of duty, Elkaim J relevantly held that:
- The defendant was not negligent in failing to slow down for the two boys who had already crossed the road, as any danger they posed had passed. Whilst they might have returned, the defendant was alert to this possibility and took precautions (putting her foot over the brake).
- The only pedestrians the defendant was aware of at the time were the two boys who had run across the road. It was not a situation such as driving near a school or in the presence of school children. There was no reason for the defendant to anticipate the presence of the plaintiff.
- Whilst the defendant was distracted by the two boys running across the road, this distraction was a reasonable response to their conduct. The evidence did not support the view that the defendant ought to have look back at the road ahead earlier than she did.
His Honour noted that Section 45(1) Civil Law (Wrongs) Act 2002 (ACT) (a mirror of Section 5C Civil Liability Act 2002 (WA)) establishes a 'but for test' for causation, whilst Section 46 (a mirror of Section 5D of the WA Act) confirms the onus of establishing causation is on a plaintiff.
As to causation, His Honour concluded that:
- It was not possible to know what path the plaintiff had taken, and accordingly it was not possible to know whether the defendant could have avoided the collision.
- Having said that, the assumption of the path of travel made by the defendant's expert witness had evidence in support of it, and was preferred to the plaintiff's expert on that basis.
- Having regard to the defendant taking a risk in assuming the plaintiff would look to his right, the defendant in any event did not have time to brake sufficiently in order to avoid the collision.
The past authorities have made it clear that motor vehicle drivers owe a higher standard of care to pedestrians, having regard to the greater harm that motor vehicles can cause.
Having said that, and as is made clear from this decision, the Courts will look at the surrounding circumstances of each case in determining whether that standard of care has been met. The level of care exercised by the driver of a motor vehicle is expected to be higher in circumstances where there is a heightened risk of pedestrians entering a road, such as near a school or a park.
Interestingly in this case, the plaintiff's lawyers did not lead evidence as to what the effect would have been had the defendant braked earlier, notwithstanding that a collision was inevitable in any event. That is, they did not seek to argue that the plaintiff's injuries would have been reduced had the impact been at a lower speed due to earlier braking by the defendant.
Proudlove v Burridge was a well-publicised WA case involving a similar causation issue (whether the accident was unavoidable in any event). We previously commented on that case but, in short, the WA Court of Appeal confirmed the key test is whether a reasonable person, in the position of the driver, keeping a proper lookout and reacting appropriately, would have been able to avoid the collision.
Given the catastrophic nature of the plaintiff's injuries in Lee v McGrath, we suspect her lawyers will be carefully considering appeal prospects.
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