Motor & Traffic Law – Blameless motor accident

See Davis v Swift 4/6/13 [2013] NSWDC 99 per Gibson DCJ. P was injured when struck by a car at night when crossing the road. Traffic was busy and there was a pedestrian crossing 60m from the point of the accident. His Honour found it difficult to understand the mechanics of the accident from P’s evidence, instead preferring D and other testimony that P moved to the centre of the road then walked quickly backwards into traffic (presumably due to concerns for her safety due to the level of traffic). D had been waiting to pull out from a car bay at the side of the road and another vehicle had stopped, indicating, to go into the bay. Though the duty owed to a driver by a pedestrian is a high one this was a rare case where P was entirely the author of her own misfortune. The fact that D did not see P was due to her quick and unpredictable movements. Appeal allowed in part 22/12/14 in [2014] NSWSC 458. The “primary judge did not err in not inferring fault on the part of the respondent. The evidence … did not justify a finding that from the respondent’s position in the driver’s seat had she looked forwards, backwards and forwards as she asserted, she must have seen the appellant in time to take some action to avoid colliding with her” @19 per Meagher JA. “As was the position in Axiak, the position in this case is that the ‘blameless accident’ is not one in which the driver has failed to continue in careful control of his or her vehicle, or had to take evasive action which resulted in the accident. In each case, there was no driving that in other circumstances would have involved fault. There was, however, contributory negligence on the part of the person injured” @36 per Meagher J. Meagher J did not accept R’s “submission that the first appellant, being the sole cause of the accident and her injuries, mandates a finding of contributory negligence of 100%. On the respondent’s argument, a plaintiff guilty of contributory negligence in a ‘blameless motor accident’ case must always be the sole cause of his or her injuries with the consequence that in every case there would be a finding of 100% contributory negligence. The legislature could not have intended such a result” @86. A’s departure from the relevant standard of care was not the worst possible example. Her damages should have been reduced by 80%, not 100%. Leeming JA agreed it was desirable the approach in Axiak should be revisited. Adamson J dissented re Axiak issues.