The plaintiff suffered injury when a car driven by the defendant ran over her foot. The Court held that the plaintiff’s damages should be reduced to account for contributory negligence on the basis that the plaintiff had provoked the incident.
The background
On 18 June 2016, the defendant was driving down an unmarked street in Punchbowl. The plaintiff was driving in the opposite direction toward her. Due to the positioning of the cars parked on either side of the roadway, there was barely enough space for both cars to pass through.
As the parties neared one another, the defendant slowed her vehicle to allow the plaintiff to proceed through the gap. However, on her way through, the plaintiff’s vehicle clipped one of the parked cars.
An argument thereafter ensued. The plaintiff believed that the defendant was responsible for her collision with the parked vehicle, and began swearing and gesticulating at her. At one stage, she even reached into the defendant’s vehicle to prevent her from driving away.
The defendant was scared and intimidated by this. She attempted to abscond from the confrontation, but in doing so ran over the plaintiff’s right foot.
Decision at trial
The Court found that the defendant had failed to meet the standard of care of a reasonable person. In reaching this determination, the Court noted that she had driven forward without any particular care for the plaintiff’s position, and was focused solely on her own safety.
Notwithstanding this, the Court also found the plaintiff contributory negligent, opining that:
- The plaintiff knew or ought to have known that the defendant might drive off if she reached into her vehicle;
- But for the plaintiff’s behaviour, the defendant would not have driven away, and thus factual causation under s 5D of the Civil Liability Act 2002 was established;
- In addition to the above, the plaintiff was also liable for failing to take action that was obvious to protect herself, by stepping back from the vehicle as it began moving; and
- The plaintiff’s conduct was gravely inappropriate and enlivened the risk which eventually occurred.
Judgment
In light of the foregoing, the Court found that the plaintiff should bear two-thirds of the damages to account for her contributory negligence.
Her total award of $95,698 was therefore reduced to $31,899.
