Section 5R of the Civil Liability Act 2002 (NSW) reflects the view that people are to take responsibility for their own lives and safety, which raises doubt about the pre-existing approach that a motor vehicle driver's culpability is inherently greater than a pedestrian's because of the vehicle's capacity to cause damage. The capacity of a motor vehicle to cause greater damage should be understood from the perspective of both the driver and the pedestrian equally, rather than as an independent consideration elevating the driver's share of responsibility. A pedestrian who crosses against a red light in the face of oncoming traffic may bear a very high proportion of contributory negligence (75% in this case). The question of whether personal disabilities of a plaintiff affect the standard of contributory negligence under s 5R(2)(a) remains open.
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