Personal safety first: Court finds no duty of care when fleeing danger

19 September 2022
Warning: This article contains details about domestic violence which may be upsetting for some readers. Reader discretion is advised.

The Supreme Court of South Australia found that a respondent who collided with a pedestrian was not liable for his injuries.

In issue

  • Whether the respondent owed the applicant a duty of care in the circumstances surrounding the collision and if so, whether that duty of care was breached.

The background

The applicant was a pedestrian who was hit by a car driven by the respondent. The applicant and respondent had previously been in a relationship and both alleged a history of previous violence and threatened violence against them by the other.

On the day of the collision, both had attended at the former marital property, arriving separately. The respondent remained in her car, in which their 9 year old daughter was a passenger. The applicant’s older son and a friend were also in attendance. An argument ensued, during which the applicant and his son allegedly damaged the vehicle, and the respondent vehicle then collided with the applicant and his son.

The applicant alleged that the respondent had deliberately driven into him. The respondent alleged that she was attempting to flee in a state of panic and that she accidently drove forward instead of reversing.

The respondent was subsequently charged with endangering life after the subject collision, which charges were subsequently downgraded to aggravated causing harm. She was tried on the criminal charges but was acquitted by a jury.

The decision at trial

The Court found that the applicant had not intentionally collided with the respondent. Further, the Court found that on the balance of probabilities, the respondent was attempting to flee the applicant in a state of panic and that in such circumstances, she did not owe a duty of care to the applicant.

Their relationship at that point in time was not one in which the respondent owed the applicant any duty of care.

The Court also found that if there was a duty of care, it was a much lessened duty of care and had not been breached by the respondent.

Accordingly, the applicant’s claim failed.

Implications for you

The findings of fact by the trial judge rested on the credibility – or lack thereof - of the witnesses. Ultimately, although the trial judge did not accept any of the witness accounts in full, she preferred the evidence of the respondent over that of the applicant and his son and daughter.

In determining whether a respondent owes an applicant a duty of care, the Court will consider the totality of their relationship - therefore when the parties are known to each other. It is important to consider the overall nature of their relationship, and the nature of the relationship at the point in time at which the incident occurs in assessing liability.

Hutchinson v Van Den Berg [2022] SASC 90

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