Decisions on contributory negligence in NSW motor vehicle accident claims

Published 23 Feb 2018

The matter of Vacko v Akhurst (2015) was a NSW District Court judgement by Justice Hatzistergos.

The Plaintiff brought proceedings in relation to a personal injury claim for compensation arising out of a motor vehicle accident on 27 July 2011.

It was the Plaintiff’s evidence that she left home at about 9.00am to walk to the Coles Supermarket in Dee Why.

At the time of the accident the claimant had walked down the side of the road to where a T junction had occurred between the Kings Way and Pitt Water Road. The Plaintiff told the court that at the time of crossing the road, she had a green man light in which entitled her to cross. She looked left and noticed that from 3 lanes of traffic there was no traffic coming towards her, she crossed until she reached the concrete median strip where traffic coming the other direction had banked up across all 3 lanes.

The inside lane happened to be a bus lane. The Plaintiff looked left noting that there was no traffic coming down the bus lane and noting that all the traffic was backed up but not moving, she felt confident that she was able to manoeuvre her way through the stationary traffic which had crossed the pedestrian crossing.

The Plaintiff noted that at this time the pedestrian traffic light was flashing red and she hurried across the road. In doing so, a car has pulled out erratically into the bus lane colliding with the Plaintiff and causing her injuries.

In considering the Plaintiff’s evidence, the judge took note that most of the contemporaneous statements taken by Police, medical doctors, ambulance, attendances and otherwise the Plaintiff either did not comment that she had a green light or commented that the light was flashing at the time of her crossing. However, throughout her evidence, the Plaintiff maintained that she had a green light when she started to attempt to cross the road.

The defendant claimed that the Plaintiff contributed to her own injuries by making the decision to cross the road while the light was flashing red. When a claim like this is made it is called contributory negligence.

The defendant’s evidence was that at the time she was travelling in the middle lane over the speed of 40-50km/h. She provided evidence that traffic lights at the intersection were green in direction of her travel but as she proceeded through the intersection, traffic backed up and she was unable to completely cross. As a result, she performed a manoeuvre to change into the bus lane so it was not to clog the intersection. The defendant acknowledged that as she drove out into the bus lane that she had an obstructed view and was blindly turning into the lane. She did not see the Plaintiff until she had hit her.

In his finding the judge found that he could not accept that the Plaintiff commenced crossing the road when the light was green. He could believe the lights were flashing red when she made the decision to cross to the middle island. Upon safely making it to the island and seeing that the traffic had not moved, he agreed that the Plaintiff made the decision to move through the traffic to get to the other side of the road.

The Judge was satisfied that the defendant had crossed the intersection on a green light and upon the banking up of the traffic that had attempted to bypass it by veering into the kerb side bus lane and in doing so has collided with the Plaintiff.

After considering the principals concerning the duty of care of a driver owes to other road users, the judge found that the defendant did owe a duty of care to the Plaintiff and that a driver must always anticipate in the view of the state of traffic that a pedestrian might cross by walking through openings amongst the traffic.

The judge then turned his mind to the issue of contributory negligence. He considered that the actions of the Plaintiff to cross the road which was outside the crossing on a flashing red light was clearly a hazard and she had failure to regard to her own safety. The Judge accepted that the Plaintiff looked after her safety by looking up and down the bus lane to see if there was oncoming traffic and had anticipated that the vehicles entitled to use it would have most likely enter it directly further down the road rather than veered into it such as the circumstances employed by the defendant.

The judge ultimately decided that the burden of waiting and not crossing was inconsequential and a social utility was not relevant meaning that the waiting for the lights to cycle through again and allowing her to cross the road would have caused no harm to herself or society.

In considering the negligence of the defendant the judge considered that a decision by the defendant to manoeuvre into the bus lane at a point where she should not have done so involved a dangerous manoeuvre especially considering that her vision of what was immediately in front of her was obstructed. Given that it was in the vicinity of a pedestrian crossing, there was no evidence of breaking, the defendant therefore did have a certain amount of contribution to the accident and that the Plaintiff was not completely at fault.

The judges viewed the greater weight of negligence should be placed on the Plaintiff’s decision to cross the road on a red light in the face of oncoming traffic. In the circumstances, he found that the defendant’s negligence contributed 45% and that the Plaintiff was responsible to the extent of 55% of her own injuries.

The judge then turned his mind to the issue of quantum within the matter ultimately finding that the Plaintiff was entitled of more than $103,000.00. When contributory negligence was considered at 55%, which was deducted, the Plaintiff was ultimately awarded an amount of more than $46,000.00. The defendant was to pay the cost of the Plaintiff’s legal costs.