TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – ACTIONS FOR NEGLIGENCE – APPORTIONMENT OF DAMAGES – GENERALLY – where motor vehicle accident – – where pedestrian struck by motor vehicle – where liability admitted – where contributory negligence is in issue – where plaintiff remained on the road surface as the vehicle approached – whether the plaintiff acted with reasonable care
Date heard: 6 February 2012
Delivered on: 10 February 2012
Judgment: McMeekin J
[21] First, I observe that Mr Perfect had every right to walk on the road surface if he wished. In doing so he must exercise ordinary care and prudence but he does not do so at his peril: Alldridge v Mulcahey[1] per McTiernan J. Secondly, in deciding what ordinary care and prudence demanded the plaintiff’s age is relevant: McHale v Watson [1966] HCA 13; (1964) 115 CLR 199 at 213-4 per Kitto J. He was then a minor, not quite 15 years of age. While there is no evidence about the matter it seems to me plain that a boy of not quite 15 does not have the same degree of “experience, understanding, judgment and thoughtfulness to be expected of an adult”: Broadhurst v Millman [1976] VR 208 at 218 per Gowans and Menhennitt JJ. Thirdly, what is relevant in determining what is “just and equitable having regard to the extent of that person’s responsibility for the damage”[2] requires consideration both of the degrees of departure from the standard of care expected of a reasonable man and the causative effect of the conduct of each party. By that latter statement it is meant that weight is to be given to the degree of danger created by the conduct in question.[3] Hence, in pedestrian cases, typically a heavier share of responsibility falls on the motorist even if the degrees of departure from the standard of reasonable care be more or less equal.[4] On any view the first defendant’s departure from the standard expected of her was gross. Fourthly, the onus lies on the defendant on this issue.
A lawyer's view 