When assessing whether a driver breached the duty of care owed to a pedestrian, the court must consider the driver's response to the overall situation of danger from the time the pedestrian was first sighted, rather than dividing events into separate phases and assessing each independently. Section 49 of the Civil Liability Act 2002 (NSW) does not deny a duty of care to intoxicated persons, does not bar recovery of damages, and does not lower the standard of care owed — it is distinct from s 50 which does bar recovery in certain circumstances but does not apply to motor accident claims. A finding of 75% contributory negligence was upheld for a heavily intoxicated pedestrian who stumbled into the path of an oncoming vehicle.
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