In Brief
- A pedestrian must exercise reasonable care when stepping onto a roadway even when they have no intention to cross the road.
- The standard of care required of a claimant is that of a reasonable person in their position to be judged on the basis of what they knew or ought to have known at the time of their injury (see s 5R(2) Civil Liability Act 2002).
Facts
The Personal Injury Commission published its decision in Ford-Gunatilake v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 418 on 16 August 2024.
On 14 March 2023, the Claimant was picking up her children from school. She loaded her children in her car and placed their bags in the boot of the vehicle. She proceeded to walk along the driver's side of her vehicle with the intention of opening the driver's door and sitting behind the wheel.
As the Claimant moved along the side of the vehicle, however, she was struck by the passenger side mirror of the Insured vehicle.
The Insured was travelling at 30 kph in a 40 zone.
The Insurer alleged that the Claimant was 50% responsible for her injuries. That decision was confirmed on Internal Review.
The Claimant referred the dispute to the PIC for a Miscellaneous Assessment.
The Member's Reasons
The Member agreed with the Insurer's finding of 50% contributory negligence for the following reasons:
- The Claimant was familiar with the school zone in which the accident occurred and she new the road was narrow.
- The dashcam footage from the Insured vehicle demonstrated that the Claimant did not look over her right shoulder before leaving the rear of her vehicle and walking along the side towards the driver's door.
- The Claimant did not, as she claimed, have to enter the roadway to see the approach of the Insured vehicle.
- A reasonable person in the Claimant's position, knowing that she was in a busy school pickup zone, would have looked for oncoming traffic before stepping onto the roadway.
- Had she looked, the Claimant would have seen the Insured vehicle and waited for it to pass before entering the roadway.
- The parties were equally responsible for the accident and, as such, contributory negligence should be assessed at 50%.
Key Learnings
The decision in Ford-Gunatilake provides a useful example of how to assess relative culpability. The Member correctly compared what the Claimant did wrong against what the Insured did wrong and concluded that they were equally responsible for the accident. Importantly, the Member had no regard for the outdated "lethal weapon" principle. Rather, it is implicit from the Member's reasons that she accepted that the Claimant was personally responsible for her own well-being. Whilst the Insured was driving a potentially lethal weapon, the Claimant should have been aware that potential lethal weapons were using the roadway and exercised reasonable care accordingly.
Additional McCabes Resources
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