Smith v Zhang

In Smith v Zhang, the Court of Appeal of New South Wales considered an appeal arising from a motor vehicle accident where a pedestrian was struck by a car. The primary dispute concerned the apportionment of liability between the driver and the pedestrian, with the driver alleging the pedestrian failed to take adequate precautions for their own safety, and the pedestrian alleging the driver failed to maintain a proper lookout.

The central legal issues before the Court of Appeal were whether the primary judge erred in their assessment of contributory negligence by failing to adequately consider the greater potential of the vehicle to cause harm compared to the pedestrian, and consequently, whether the apportionment of liability was just and reasonable.

The Court of Appeal, by majority, found that the primary judge had erred in their assessment. The majority reasoned that while both parties were at fault, the significant disparity in the potential for harm between a motor vehicle and a pedestrian necessitated a greater consideration of the driver's responsibility. The court applied principles of negligence and contributory negligence, emphasizing the need for a balanced approach that acknowledges the inherent dangers posed by motor vehicles.

Consequently, the appeal was allowed, and the original verdict and judgment for the appellant were set aside. A new verdict and judgment were entered for the appellant in a substantially increased sum, with the respondent ordered to pay the appellant's costs of the appeal.