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  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
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  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
"In Warth v Lafsky at 
McColl JA observed that notwithstanding the conclusion in
Derrick v Cheung
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
As to apportionment of liability, the Court of Appeal
"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 content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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