In this article we explore the duty of care owed by motor vehicle users to pedestrians by revisiting the 2021 Supreme Court of Tasmania decision of Girmay v Green.
The background
The plaintiff, who was aged 12, sustained catastrophic head injuries after being struck by a vehicle being driven by the defendant. The plaintiff was sitting in the back seat of a vehicle parked on the side of the road opposite a takeaway shop.
He got out of the vehicle, went around the back of the car, and went to cross the road towards the shop. At the same time, the defendant was driving his vehicle along the same road and collided with the plaintiff.
The accident occurred at around 2.10pm along a stretch of road that was straight and long, with two lanes and a centre line, and vehicles travelling in opposite directions. At the time of the accident the defendant would have had a clear view of the road ahead. Similarly, the plaintiff’s view would have been relatively clear as he was crossing.
The plaintiff argued the collision was caused by the defendant failing to keep a proper look out, driving at an excessive speed, failing to observe the plaintiff on the roadway in time so as to avoid the collision, and failing to brake or manoeuvre his vehicle so as to avoid the collision.
The defendant argued the plaintiff was running across the road, that the defendant was keeping a proper lookout, was driving at a reasonable speed and, when he saw the plaintiff, the defendant braked and swerved to avoid him. The defendant argued the accident was unavoidable.
The decision at trial
The Court found in favour of the defendant, finding that the defendant did not breach his duty of care.
In reaching that finding the Court referred to the judgment of Meagher JA in Marien v Gardiner [2013] NSWCA 396 at [33] to [37] and the summary therein of the law relating to a driver’s duty of care. The key takeaways from that summary are as follows:
- A driver owes a duty to all users of the roadway (including pedestrians), to take reasonable care for their safety having regard to all the circumstances in the case;
- The question of breach of duty is considered prospectively and by reference to what a reasonable driver in the defendant’s position would have done, if anything, to respond to any foreseeable risk of injury or danger to other road users;
- Whether reasonable care has been exercised or not, is not a question of whether different conduct would have produced a different outcome (avoided the accident). Rather, reasonable care requires ‘reasonable attention to all that is happening on and near the roadway that may present a source of danger’, including consideration of and paying attention to, a number of different things that may come into the path of the defendant’s vehicle;
- The driver of the vehicle is not however required to know of or predict every event which may happen in the vicinity of the vehicle in order to be able to take reasonable steps to react to those events;
- A driver is also not required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle, this includes not being required to travel at a speed within the ‘limits of visibility and control’ to be able to react to whatever crosses the path of the vehicle.
Notwithstanding the above, the Court referred to the judgment of McColl JA in Warth v Lafsky [2014] NSWCA 94 at [56] in which it noted that: drivers must take into account the possibility of careless behaviour by pedestrians; a greater standard of care is required of motorists when young children are in the vicinity or could be reasonable expected to be in the vicinity of the road; and drivers should ‘exercise quite a high degree of vigilance, especially in the presence of other traffic and in the vicinity of intersections’.
The relevant circumstances in this case which supported a finding that the defendant did not breach his duty of care, were as follows:
- The accident occurred during school hours and there was no reason to expect children to be in the vicinity of where the accident occurred. There was no reason for special vigilance on the part of the defendant.
- The defendant’s duty of care required him to keep a proper lookout in front of and behind him. He was also required to keep a look out for vehicles approaching the road from adjoining streets and keep an eye on his speed.
- Whilst a witness (the owner of the takeaway shop) was able to see the plaintiff before the defendant, this was because he was in a position to look ‘anywhere he chose’. As such the Court did not consider that just because the witness was able to see the plaintiff it did not mean the defendant was not exercising reasonable care.
- The evidence of the expert was that the defendant could not have avoided the collision unless he was travelling significantly more slowly than the estimated speed of 45 km/hr (being lower than that of the speed limit). His Honour considered that ‘The risk of a pedestrian suddenly running across the road on a collision course with an approaching car was not so significant that a reasonable motorist in the defendant’s position would have travelled so slowly that a collision could have been avoided.’
Implications for you
This decision serves as a reminder that, whilst drivers have a high standard of care imposed on them; depending on the circumstances, that duty does not extend to requiring drivers to be able to react to everything that comes into the path of their vehicle, including pedestrians. When driving their vehicles drivers should be conscious of the circumstances in which they are travelling. When assessing liability in CTP matters involving a pedestrian, insurers ought pay particular attention to all the circumstances of the case, because, as we can see from this Supreme Court decision, the driver is not always at fault.
Girmay (by his litigation guardian Tsege Gebregiorgis Behre) v Green [2021] TASSC 52
