In Davis v Swift  NSWCA 458 a pedestrian sued a driver in negligence for injuring her foot as she tried to cross a road. She also sued in the alternative on the basis of a blameless motor vehicle accident.
The driver’s vehicle was parked kerbside. The pedestrian had walked in front of the car and over the traffic lane to the centre of the road but had retreated to avoid oncoming traffic, and was then struck by the driver’s vehicle pulling out from the parked position.
The Trial Judge found that it was a blameless accident but contributory negligence was assessed at 100%. The damages of $186,717 assessed at first instance were therefore reduced to $0.
On appeal, the Court found the driver was negligent and therefore the accident was not blameless. It assessed the pedestrian’s contributory negligence at 80%.
The Court considered that the reduction of damages for contributory negligence is to be determined by assessing the extent to which the Plaintiff departed from a standard of care he or she was required to observe in the interests of his or her safety. Given the Plaintiff’s lack of care for her own safety, the appropriate result was that the Plaintiff’s damages should be reduced by 80%.
Consequently, the damages calculated by the first Judge were reduced by 80% for contributory negligence to $37,343.
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