Someone breached a road rule – so is the person liable?

PUBLISHED 07 Oct 2015

From our wealth of experience in countless motor vehicle accident cases, the issue of liability may be a simple question when there has been a clear breach of road rules by a road user, which lead to the accident. The case of Ning v Mc Grath (2015) ACTSC 163 (Ning) says this may not always be the equation. This decision would remind road users and practitioners that even in cases where one party is held to have clearly breached a road rule(s), a finding of significant contributory negligence by the injured party would enable a Court to apportion some degree of liability to the injured party.


In this case, at 6:24 pm (after dark) on 15 May 2008, Mr McGrath, the plaintiff, was injured when his motorcycle collided with Mr Ning’s motor vehicle, the defendant, in the proceedings. The accident occurred as the defendant was making a right hand turn into a T-intersection at Barraclough Crescent. The plaintiff was approaching the intersection along Barraclough Crescent, from the defendant’s right side.

The plaintiff brought proceedings in the Magistrates Court and contended that the defendant had breached his duty of care by failing to keep a proper lookout and failing to give way. The defendant accepted that, when making the right turn, he had a duty to give way to traffic proceeding along Barraclough Crescent.

However, the defendant argued that he had discharged his duty of care to the plaintiff, when he had looked to the right before turning into Barraclough Crescent. The defendant contended that he had failed to see the plaintiff because the plaintiff had been wearing dark clothing and he was riding a motorcycle with a poorly illuminated headlight. On the premise of this submission, the defendant contended that the plaintiff was guilty of contributory negligence.

The trial judge found that the defendant had breached his duty of care, and there had been no contributory negligence by the plaintiff. The trial judge found that there was no contributory negligence because the defendant’s reduced visibility had played “no role” in the plaintiff’s failure to see him. The trial judge gave judgment for the plaintiff in the sum of $193,150.45.

Accordingly, the defendant appealed against the findings on the issue of liability and contributory negligence.

Outcome of appeal

The defendant raised four grounds of appeal to the Court of Appeal. The Court rejected three of the four grounds. For our purposes, this article will not discuss about the rejected grounds as those concerned evidentiary and expert issues. The main ground of appeal by the defendant was that the trial judge erred in not making a finding of contributory negligence against the plaintiff when it was contended that the plaintiff contributed to the defendant’s failure in noticing his position as he was approaching the intersection along Barraclough Crescent.

The Court found for the defendant on this ground and reasoned that whilst it was sufficiently clear that the defendant breached a road rule in not giving way to the plaintiff as he entered the intersection, it was held that the plaintiff was required to exercise a standard of care as a road user. This standard of care was the expectation that a reasonable person in the position of the plaintiff who was driving a motor cycle at night, would have worn highly visible clothing and ensured the headlights of the motor cycle was functioning at an acceptable level for road users to see.

The plaintiff departed from this standard of care when he was travelling on the road with dark clothing and a defective front headlight. The Court found that this was a contributing factor to the defendant’s inability to ‘see’ the plaintiff when he looked to his right.

What this case means for motor accident claims

This case serves as a critical and thought provoking reference for practitioners and injured parties when advising and taking on cases. Practitioners and injured parties should be aware that not every breach of a road rule by the wrongful party may constitute 100% liability for the wrongful party. It would be important to ascertain the finer details and accounts of the accident, such as the clothing worn by the injured party and the lighting of the motor vehicle like in the case of Ning, so that the rights of the parties are fully comprehended and realized.

Call us now on 1800 004 878 to book a free appointment with one of my compensation experts, or email your enquiry.