A driver's failure to use high beam headlights in a dark area may constitute a breach of duty where the driver is aware of the possibility of pedestrians or hazards and the simple step of switching to high beam would considerably reduce the risk. However, factual causation under s 5D of the Civil Liability Act 2002 (NSW) will not be established where the evidence shows the collision would have occurred regardless of the breach, particularly where a pedestrian enters the roadway at jogging speed within the driver's stopping distance.
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