Driver not liable in car v pedestrian

22 November 2021

In issue

  • A young boy ran out from behind a car in which he had been travelling as a passenger. The defendant driver was travelling on the opposite side of the road towards the plaintiff. The defendant hit the plaintiff with the front driver's side guard of his vehicle. The plaintiff fell backwards and hit his head, suffering permanent brain damage. The issue was whether the defendant driver had been negligent.

The background

At approximately 2:10pm a young boy was crossing the road. The vehicle he had been travelling in was heading west. He got out of the rear back door, went around the back of the car and proceeded to cross the road. The defendant was driving a vehicle, heading east, with a passenger in the front. The collision occurred on a long straight road. The defendant would have had a clear view of the road, travelling just under the speed limit. Subject to any vehicles blocking the road, the plaintiff would have also had a clear view of the road. There was one lane of traffic travelling in each direction. The plaintiff claimed the accident was caused by the defendant’s negligent, in that he failed to keep a proper look out, drove at excessive speed, failed to observe the plaintiff in time to avoid a collision, and failed to brake or slow down to manoeuvre his vehicle sufficiently or at all so to avoid the collision.

Three witnesses called by the defendant’s counsel all confirmed that the young boy was running across the road. The defendant’s expert witness, a mechanical engineer, gave evidence to the effect that it was not possible for the defendant to stop in time, his reaction of swerving and braking was a typical response of an alert driver, and there was no other reasonable course of action available to him. The expert evidence was unchallenged.

The decision at trial

His Honour Chief Justice Blow found that the defendant did not breach his duty of care to the plaintiff. Of relevance in reaching this finding was the fact that the accident occurred during school hours and as a result there was no reason to expect children to be in the vicinity and therefore no reason for special vigilance on the part of the defendant. What the defendant’s duty of care did require of him was to keep a proper lookout as to what was in the front of him and behind him, and what vehicles where approaching from his left or right and awareness for his vehicle’s speed. It was accepted by His Honour that the defendant could not have avoided the collision. The risk of a pedestrian suddenly running across the road with a vehicle approaching was not so significant that a reasonable motorist should have been travelling so slowly that a collision could have been avoided.

Implications for you

This case serves as a reminder that exercising reasonable care whilst driving a vehicle does not necessarily mean being able to predict or react to everything that may happen on the road and around the vehicle. That said, the level of vigilance required will depend on the circumstances of the case. For example had the accident occurred during school hours and therefore during a time when it would be likely that young children may be crossing the road, His Honour might have reached a different finding.

Girmay v Green [2021] TASSC 52

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