All road users, including drivers, cyclists and even pedestrians, owe a duty of care to their fellow road users.
The standard of care that must be exercised by all road users is ‘reasonable care to avoid causing injury to other road users’.[1]
However, the driver of a motor vehicle owes a duty of care that extends further given the potential for damage and injury to more vulnerable road users, such as cyclists and pedestrians.
The standard of care expected of a driver of a motor vehicle is that of a ‘reasonable driver’.[2]
The High Court of Australia detailed the content of the standard of care in its decision in Manley v Alexander in the following way:
‘the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events’.[3]
In acknowledgement of the position of vulnerability of cyclists using the road, there are laws in Queensland that drivers must contemplate as a means of safeguarding cyclists. Such rules include:
- Motorists must stay wider of cyclists by giving a minimum of 1 metre when passing a bicycle rider in a 60km per hour or less speed zone;
- Motorists must stay wider of bicycle riders by giving a minimum of 1.5 metres where the speed limit is over 60km per hour.
The penalty for failing to allow the minimum distance when passing a bicycle rider is a license penalty of 3 demerit points and a $400 fine.
Similarly, there are special road rules providing guidance to drivers in sharing roads with pedestrians. They include:
- Giving way to pedestrians on or entering children, pedestrian or marked foot crossings;
- Giving way to pedestrians on or entering a road that a driver is turning into;
- Giving way to pedestrians in a shared zone or slip lane;
- Travelling at a speed allowing you to stop safely at a crossing if needed;
- Preparing to stop if you see another vehicle/bicycle stop, or slow down near a crossing.
Aside from these ‘road rules’, the potential liability of drivers is informed by the law of negligence, and in particular what actions may be determined to be a breach of a duty of care in differing situations. For instance, a court may determine that a driver has breached his/her duty of care in circumstances where:
- A vehicle strikes a cyclist on a roundabout travelling in the same direction through failing to allow sufficient distance;
- A vehicle striking a pedestrian whom unexpectedly crosses the road, but in circumstances where that pedestrian has been in the driver’s view for a reasonable distance and the driver fails to slow his/her vehicle in anticipation of the unexpected.
It is the anticipation of the unexpected which turns on the individual facts of each case. A driver is not required to predict every possible event that could happen around them.[4] The determination comes down to ‘what a reasonable driver would have done in the circumstances by way of response to a foreseeable risk of injury or danger to another road user’.[5]
In circumstances where a cyclist or pedestrian is struck by a vehicle and sustains injury, an examination of their own actions is undertaken on an individual case basis to ascertain whether their claim may be reduced by the level of their own contribution to the cause of the accident.
However, the actions of the driver must be scrutinised closely given the position of dominance that a driver within a mechanical vehicle sits, in comparison to the vulnerable position of a cyclist or pedestrian.
[1] Franklin v Blick [2014] ACTCS 273
[2] Imbree v McNeilly [2008] HCA 40
[3] [2005] HCA 79
[4] Worth v Lafsky [2014] NSWCA 94
[5] Marien v Gardiner [2013] NSWCA 396
