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 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 traffic oncoming, and was then struck by the driver’s vehicle pulling out from the parked position.

The first judge Gibson DCJ found that it was a blameless motor accident but that contributory negligence was assessed at 100%.

On appeal, the court found the driver was liable but the pedestrian’s contributory negligence was assessed at 80%.

The Court considered that the test from Axiac v Ingram [2012] NSWCA 311 should have been applied: 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 significant departure from the standard of care expected, the appropriate finding was that the plaintiff’s damages should be reduced by 80%.

The trial Judge had hypothesised damages in respect of future treatment expenses and domestic care and assistance at $186,717. This was reduced by 80 per cent for contributory negligence to $37,343.

Davis v Swift [2014] NSWCA 458. Meagher JA, Leeming JA agreeing, Adamson J dissent.