The traditional approach in cases such as Pennington v Norris and Talbot-Butt v Holloway, which treated the driver of a heavy vehicle as necessarily bearing greater culpability than a pedestrian, no longer applies in NSW following the enactment of s 5R of the Civil Liability Act 2002. Under s 5R, if a pedestrian and a driver are equally careless, liability should be shared equally, because the policy of the Act is that people should take responsibility for their own safety. However, this was a majority position (Basten JA, Emmett JA agreeing; McColl JA dissenting), and the dissent maintained that the relative danger posed by heavy vehicles remains a relevant consideration in apportionment.
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