Mullane & Lindsay SolicitorsCan Dark Clothing be Associated with Motor Vehicle Accidents - Mullane & Lindsay Solicitors

Can Dark Clothing be Associated with Motor Vehicle Accidents

Posted on November 3rd, 2011

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by Tony Cavanagh

Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.

The NSW Court of Appeal recently reviewed a motor accident claim in which a pedestrian was awarded significant damages after being hit by a motor car; but whose damages were reduced for her own contributory negligence.  The essential basis of that reduction, was that the pedestrian was wearing a black ‘hijab’ (a full length garment covering both body and head)  and was crossing the road at dusk.

The trial judge had found the motorist was primarily at fault, for failing to keep a proper lookout – especially as the pedestrian had almost finished her crossing, but felt the pedestrian should also bear some of the responsibility. There was an appeal both as to the overall damages awarded, and as to the findings on contributory negligence. The Court of Appeal considered that the pedestrian was under a greater than normal duty to keep a proper lookout for her own safety on the basis that, self evidently, the wearing of dark clothing made it harder for motorists to see a pedestrian, particularly at dusk.

The Court of Appeal ordered a retrial on the basis that the Trial Judge had not given adequate reasons for the overall award of damages; but specifically upheld the 30% reduction for the pedestrian’s contributory negligence.

Although this particular case involved the wearing of a hijab, the principle is applicable to any pedestrian wearing any form of dark clothing.

Tony Cavanagh is a Director at Mullane & Lindsay, and practises extensively in commercial and other litigation; and employment law. If you require any assistance in these areas please contact Tony Cavanagh or contact our Newcastle office.

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