RTP v Hardcrete Limited

A driver must maintain a proper lookout for all road users, including pedestrians. The required care increases where the vehicle is large or travelling at speed. The court may consider what the particular driver would have done if the hazard had been seen, where the evidence shows that the driver would have exceeded the minimum objective standard. A pedestrian’s failure to look may amount to contributory negligence, but apportionment must reflect both blameworthiness and causal potency. The greater destructive capability of a motor vehicle remains relevant. On the facts, the driver was primarily liable and the claimant was 40% contributorily negligent.

The claimant, an 84-year-old pedestrian, suffered a serious head injury after being struck by a cement mixer owned by the defendant and driven by its employee at a roundabout. Liability was tried as a preliminary issue.

The claimant alleged that the driver failed to keep a proper lookout and failed to stop or take effective evasive action. The defendant denied primary negligence and alleged contributory negligence, including failure to observe the mixer and failure to use a nearby pedestrian underpass. The central issues were whether a reasonably competent driver should have seen the claimant earlier, what the driver would have done if he had done so, and the appropriate apportionment of responsibility.

1. Primary liability. The driver owed the ordinary duty of the reasonably careful driver in the circumstances. That duty required a lookout for all road users, including pedestrians. The greater the speed and size of the vehicle, the more important it was to anticipate events requiring the vehicle to stop. The claimant was visible from about 80 metres away, and there was no justification for the driver not to have seen him earlier.
2. The question whether a reasonably competent driver should and would have seen the claimant was objective. However, where evidence showed what the individual driver would in fact have done, it was appropriate to consider that evidence. The driver accepted that, if he had seen the claimant beginning to move, he would have braked. That would have occurred before the point after which the collision could not be avoided. Particulars of negligence concerning lookout and failure to stop were therefore established. The allegation concerning failure to sound the horn was not proved.
3. Contributory negligence. Under section 1(1) of the Law Reform (Contributory Negligence) Act 1945, the damages had to be reduced to the extent that was just and equitable having regard to the claimant’s responsibility. The relevant assessment required consideration of blameworthiness and causal potency. The claimant failed to look to his right and therefore bore responsibility. It was nevertheless significant that the mixer had much greater destructive capability and that the collision would have been avoided if the driver had kept a proper lookout.
4. It was reasonable for the claimant not to use the underpass, and that decision did not constitute contributory negligence. The just and equitable apportionment was 40% against the claimant. Judgment was entered for the claimant for 60% of the damages otherwise recoverable.