Citation: [2015] NSWLC 1
Court: Local Court of New South Wales
Date: 11 February 2015
Judge(s): Assessor Olischlager
Background
The State of New South Wales, on behalf of NSW Police, brought a claim in the Local Court to recover the cost of repairing a police vehicle damaged in a collision with a pedestrian. The collision occurred at approximately 12:05 am on 25 February 2011 at the intersection of Old South Head Road and Penkivil Street, Bondi.
The pedestrian, Mr McGuirk, ran onto the roadway from a south westerly direction in front of the oncoming police vehicle while intoxicated, apparently unaware of the vehicle's presence. The police vehicle was travelling within the 50 km/h speed limit with headlights on in a well-lit area. Mr McGuirk suffered injuries that were not life-threatening, and the cost of repairing the police vehicle was $6,877.11.
Mr McGuirk had no recollection of the moments leading up to the collision, so the account of events relied on statements from the two officers in the police vehicle and the driver and passenger of a taxi following approximately 50 metres behind.
Legal Issues
- Whether a pedestrian owes a duty of care to a motorist at common law
- Whether section 5B of the Civil Liability Act 2002 (NSW) gives rise to such a duty
- Whether a breach of the Road Rules 2014 (NSW) establishes a duty of care owed by a pedestrian to a motorist
- Whether, if such a duty existed, Mr McGuirk breached it and caused the plaintiff's loss
Decision
Issue 1: Duty of care at common law
The court found that no duty of care was owed by a pedestrian to a motorist at common law (at [22]). Established authority consistently frames the pedestrian's obligation to take care as a duty owed to themselves, not to others. This standard arises in contributory negligence analysis, where a pedestrian's failure to take care for their own safety is assessed, rather than as the basis of a freestanding tortious claim against the pedestrian (at [19]). As Windeyer J observed in Teubner v Humble, "the carelessness of a pedestrian is carelessness for his own safety rather than a disregard of the safety of others" (at [17]).
Issue 2: Duty of care under the Civil Liability Act 2002 (NSW)
Section 5B of the Civil Liability Act did not alter the position (at [25]). The court reasoned that a reasonable pedestrian entering a roadway will be focused on protecting their own life from potentially lethal motor vehicles, not on avoiding minor property damage to those vehicles. The risk of serious personal injury or death to the pedestrian is the primary consideration guiding pedestrian conduct, making any risk of property damage to a vehicle comparatively insignificant (at [25]).
Issue 3: Breach of the Road Rules
The plaintiff argued that Mr McGuirk's breach of rule 236(1) of the Road Rules 2014 supported its claim. The court rejected this, holding that while a breach of the Road Rules may be prima facie evidence of negligence, the Rules do not create categories of duty of care (at [26]). Although the court accepted that Mr McGuirk was negligent in causing a hazard, that negligence was not actionable in the absence of a duty owed to the plaintiff (at [26]). All three elements of a negligence claim must be established: duty, breach, and damage. The plaintiff failed at the first (at [27]).
Orders Made
- Verdict for the defendant.
- The plaintiff is ordered to pay the defendant's costs of $767.00 within 28 days.
Key Takeaways
- At common law, a pedestrian does not owe a duty of care to a motorist; the pedestrian's obligation to take care is directed at their own safety and arises in contributory negligence analysis, not as a basis for a tortious claim brought against them (at [19], [22]).
- Section 5B of the Civil Liability Act 2002 (NSW) does not extend the duty of care so as to make pedestrians liable to motorists for property damage arising from a collision (at [25]).
- A breach of the Road Rules may constitute prima facie evidence of negligence, but the Rules do not themselves establish or create categories of duty of care (at [26]).
- Where negligence is not actionable because no duty of care is owed to the plaintiff, all three elements of a negligence claim must still be satisfied: duty, breach, and damage. Proof of the latter two alone is insufficient (at [26]-[27]).
- The court distinguished between the relative positions of pedestrians and motorists: pedestrians are vulnerable road users facing potentially lethal harm, and their conduct is appropriately directed at self-preservation rather than protection of other parties' property (at [25]).
Legislation and Cases Referenced
Legislation
- Civil Liability Act 2002 (NSW), s 5B
- Road Rules 2014 (NSW), r 236(1)
Cases
- Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1
- Cynthia Gaye Anne Shaw by her Next Friend Phillip John Lyster v Monley [1999] WADC 143
- Jones v Bradley [2003] NSWCA 81
- Pennington v Norris [1956] HCA 26; 96 CLR 10
- Teubner v Humble [1963] HCA 11; 108 CLR 491
- Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505