Blackburne v Thomopoulos

This matter concerned an application for special leave to appeal to the High Court of Australia, brought by the applicant, Blackburne, against the respondent, Thomopoulos. The dispute arose from a judgment of the Court of Appeal concerning the duty of care owed by a motor vehicle driver to child pedestrians on a busy street.

The central legal issue before the High Court was whether the Court of Appeal had erred in law by setting the standard of care owed by a driver to child pedestrians too low. Specifically, the applicant argued that the Court of Appeal's reasoning, as expressed by Justices Samuels and Priestley, suggested that a driver's duty of care did not extend to situations where a pedestrian, particularly a child, behaved recklessly or appeared suddenly without regard for their own safety. The applicant contended that this approach effectively denied a duty of care in certain circumstances, which was contrary to established legal principles.

The applicant submitted that the Court of Appeal had misdirected itself by focusing on the practicability of avoiding pedestrians on a busy road and by considering the pedestrian's conduct as a reason to negate the existence of a legal obligation. The applicant argued that the duty of care should encompass the obligation to avoid possible risks of injury, not just fanciful ones, and that the standard of care should not be so low as to deny a duty to a pedestrian who appears suddenly. The applicant sought to reframe the proposition of law to assert that a driver in an inside lane owes a duty of care to any pedestrian at all times.