By Stuart Eustice, Partner, Holly White, Lawyer & Zoe Vlahogiannis, Law Graduate
In January 2017, an Uber driver, Mr Patel, the defendant, stopped his vehicle to let his passenger, Mr Luna, exit the car. As Mr Luna opened the door, he blocked the path of a cyclist riding in the bike lane, Mr Reynolds, the plaintiff. The plaintiff was thrown from his bike and sustained injuries to his left hand and wrist. The plaintiff commenced proceedings against the defendant (the Uber driver) in negligence.
Duty of Care
The plaintiff submitted the defendant owed him a duty of care in two respects:
- A duty of a driver to other road users. This was breached by the defendant’s failure to turn on his indicator or hazard lights.
- A duty to caution a passenger against exiting a vehicle in an unsafe location and/or a duty to caution a passenger exiting a vehicle next to a bike lane to take care of passing cyclists. The plaintiff noted he did not assert this duty extended to a duty to control or stop Mr Luna from exiting the vehicle, but to warn Mr Luna, to protect him and other road users from a foreseeable risk of injury.
The defendant submitted that if the Court were to find that a duty of care was owed to take reasonable steps to control the conduct of Mr Luna or to cause, permit, instruct, supervise or warn him from opening the door, then this would be a novel duty and would not extend in the way the plaintiff alleged. The defendant’s argument was supported by the common law’s reluctance to impose a duty to control others and that there is generally no duty to prevent a third party from harming another. There were also policy considerations in favour of not extending the duty of care owed by drivers to road users in the manner asserted.
Justice Tsalamandris found that in accordance with the defendant’s duty to act reasonably in respect of a foreseeable risk of injury to other road users, a reasonable driver would have:
- warned Mr Luna against exiting at the location and / or advised him to watch for cyclists; and
- put the vehicle’s indicator or warning lights on.
The defendant therefore did not take reasonable steps, and was held to have breached his duty of care to the plaintiff.
Despite the defendant alleging that the plaintiff was cycling too fast and should have taken account of people getting in and out of cars, the Court found that there was no evidence of the plaintiff’s fast speed, and with the absence of warning lights or a partially open door, the contributory negligence claim from the defendant was dismissed.
The full decision can be read here: https://aucc.sirsidynix.net.au//Judgments/VSC/2022/T0211.pdf
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