On Thu, 15 Dec 2005 13:40:36 +1100, Sylvia Else
wrote:
>http://www.austlii.edu.au/au/cases/cth/high_ct/2005/79.html
>
>Essentially, the facts are that at night, a truck driver ran over a
>drunk who was lying face down along the middle of the road, and dressed
>in dark clothing. The truck driver had veered across the road to avoid
>the risk of hitting another drunk who had stepped onto the carriageway.
>
>The person who was run over survived, and sued. At first instance, the
>case was dismissed. This was overturned by a 2-1 split on appeal, albeit
>with 70% of the negligence attributed to the person, and only 30% to the
>truck driver. The High Court has affirmed the appeal court's decision,
>this time with a 3-2 split
>
>I'm inclined to side with the minority in the High Court, who wanted to
>reinstate the decision of the court of first instance.
>
>While there's no question that a duty of care exists, it's far from
>clear to me that it's negligent to fail to avoid hitting an unexpected
>object in the middle of a dark road, particularly where the driver's
>attention is legitimately diverted towards another hazard.
>
>I think the states should legislate to reverse this decision - I'm just
>not sure what any proposed legislation should say.
>
>Sylvia.
A bit of a theme on I'm on at the moment is that you have to watch
where you are going.
If you are walking along the road this means that you should be
looking where your feet are steping and where your body is heading.
If you are driving along the road then you should be looking where
your vehicle is about to drive to.
Defenses of bumping into things that are in your path are that you
can't see the thing you bump into. A denial of that defense is it is
reasonable to expect that type of thing you hit to be their.
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