Australia: Look out! Pedestrians running in front of vehicles - avoidable or not?

Last Updated: 30 August 2018
Article by Stephen Williams

In Lee v McGrath [2018] 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.

Liability issues

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.

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.

Kott Gunning is a proud member of

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Stephen Williams
Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions