By Stuart Eustice, Partner, Holly White, Lawyer & Zoe Vlahogiannis, Law Graduate
In January 2014, Singh, the Plaintiff, was driving on Peninsula Link when his baby became highly distressed. He pulled over in the emergency lane so he could swap drivers and settle his baby. Upon exiting and walking towards the front of his vehicle, the Plaintiff was struck by Ward, the Defendant, who was driving at approximately 100km/hr. The Plaintiff sustained a broken leg and sued for damages in negligence.
During the trial, there was a factual dispute as to whether the Plaintiff had walked within the emergency lane or had stepped into the left lane. After considering the evidence and the strikingly different views of the Plaintiff, Defendant, and witnesses as to how and where the incident occurred, Justice Gorton concluded that on the balance of probabilities that the following occurred:
- The Plaintiff stopped in the emergency lane, at a point where he had sufficient room to exit his vehicle while staying entirely within the emergency lane.
- When exiting his vehicle, the Plaintiff remained within the emergency lane.
- The incident occurred because the Defendant momentarily lost concentration and drifted into the emergency lane as he passed the Plaintiff.
Defendant’s Liability
Justice Gorton found that by moving into the emergency lane, the Defendant failed to take reasonable care, thereby causing injury to the Plaintiff. The Defendant’s conduct was also a breach of rule 146 of the Road Safety Rules 2009, which requires a driver to drive ‘completely in a marked lane’.
Was the Plaintiff contributorily negligent?
The Defendant contended that the Plaintiff was contributorily negligent because he should not have stopped in the emergency lane and instead should have exited the highway. The Defendant relied on rule 178 of the Road Safety Rules which provides a driver should not stop in the emergency lane unless ‘it is necessary or desirable … in the interests of safety’.
Justice Gorton accepted the Plaintiff’s baby was ‘continuously crying and shouting’ and was very distracting. It was therefore ‘desirable… in the interests of safety’ for the Plaintiff to pull over. He noted the Plaintiff should have switched on his hazard lights, however found this did not contribute to the incident as the Plaintiff was clearly visible, the incident occurring during daylight.
Justice Gorton found the Plaintiff had stopped in a position where there was no barrier to his right and could have left a greater distance between his vehicle and the left lane. He considered a reasonable driver stopping alongside a major highway should take into account the fact that persons driving on the highway can lose attention and drift out of their lane and would pull over as far left as possible. Accordingly, he held the Plaintiff failed to take reasonable care for his own safety and that lack of care was a cause of the incident.
Nonetheless, Justice Gorton held Defendant had the ‘overwhelming responsibility’ for the accident. He found the Defendant liable with a 10% reduction for the Plaintiff’s contributory negligence.
https://aucc.sirsidynix.net.au//Judgments/VSC/2022/T0155.pdf
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