C. Drivers
Duty of care
A driver, as a road user, owes a duty of reasonable care to all other road users. This includes other drivers, cyclists and pedestrians, and the duty is owed individually to each road user.
The duty requires a driver to take reasonable care in the management and operation of the vehicle so as to avoid causing foreseeable injury or damage to others using or likely to be affected by the road.
Standard of care
The standard is that of an ordinary skilful driver exercising reasonable care in all the circumstances. It is not a standard of perfection, but rather one of reasonable driving behaviour. This standard is objective and does not vary with the defendant’s personal characteristics such as inexperience, nervousness, or particular driving skill.
Whether the standard has been met depends on the whole factual setting. The court will consider the whole factual context, including the speed of the vehicle, the condition and layout of the road, visibility, traffic, weather, traffic signals, road markings, and the likelihood of pedestrians or other road users being present.
For example, where visibility is poor, the probability of failing to detect a pedestrian or obstacle increases, and the potential for serious injury is high, so the reasonable driver slows down more markedly than in clear conditions.
Where children or other vulnerable road users are likely to be present, the reasonable driver takes additional care, anticipating that they may misjudge speed or behave unpredictably.
Reasonable care by a driver generally includes:
- keeping proper control of the vehicle;
- maintaining a proper lookout;
- driving at a safe speed for the prevailing conditions;
- complying with traffic signs and road rules;
- keeping a proper distance from vehicles ahead;
- using signals and headlights where necessary; and
- taking extra care where pedestrians are likely to be present.
Courts frequently refer to the Road Users’ Code to determine the standard. For example, the Code states that speed limits are maximums and do not necessarily mean it is safe to drive at that speed under all conditions.
Determining a breach of duty
A court may find a driver negligent if he has driven below the standard of a reasonable driver, even if the precise manner of negligence cannot be specified. Examples of conduct that falls below the required standard of care include:
(i) Failure to keep a proper lookout
A driver breaches their duty if he fails to notice another road user or an impending hazard that a reasonably prudent driver would have seen earlier, or if he fails to promptly react to other vehicles, such as those changing lanes. This applies even if the driver is not exceeding the speed limit; for instance, if a road is long and straight with optimal lighting, failing to notice a pedestrian or a slowing vehicle in time to react is considered negligent.
(ii) Excessive speed and inappropriate speed for conditions
Breach can occur even within speed limits if the speed is unsafe for the circumstances. Examples include:
- Driving at a speed that increases reaction time and the severity of potential accidents in a way that ignores road or weather conditions.
- Failing to reduce speed at night so that the stopping distance remains within the range of the vehicle’s headlamps.
(iii) Encroachment onto a footway
Driving too close to or onto pedestrian space may constitute negligence.
(iv) Distractions and lack of attention
Engaging in conduct that diverts attention from the road is a breach. This includes:
- Having a casual conversation on a phone, even with a hands-free device, can distract a driver and lead to a failure to maintain a sufficiently good lookout.
- Driving while tired or in need of sleep, which may lead to dozing off at the wheel, is a failure to take reasonable care.
- Failing to use a vehicle’s horn to alert others when necessary can be evidence that a driver was not paying proper attention.
(v) Driving under the influence
Operating a vehicle while under the influence of alcohol or drugs is a clear breach of duty, as it impairs the driver’s ability to react appropriately to road situations.
(vi) Inadequate reaction to emergencies (“Agony of the moment”)
While the law allows leeway for split-second decisions in emergencies, a driver still breaches their duty if their reaction is not what a prudent driver would have done. Examples include:
- Making a "big/hard" swerve that causes a loss of control when a simple braking action would have sufficed to maintain a safe distance is often found negligent.
- A reasonably prudent driver should brake first and only swerve if the situation permits and the adjacent lanes are clear.
(vii) Mechanical maintenance
Driving a vehicle with known mechanical defects, such as inoperative headlamps, defective brakes, or an inoperative ABS system, constitutes a failure to ensure the vehicle is managed to the standard of a reasonably competent driver.
Relationship with passengers
If the driver is acting as a carrier, for example, as a taxi or bus driver, there is also a duty of reasonable care and skill for the safety of passengers. In the case of buses, reasonable care includes:
- driving smoothly;
- avoiding abnormal and sudden movements; and
- providing reasonable safety support within the bus.
A bus driver is not generally required to wait until every passenger is seated before moving off, though a higher degree of care is owed to vulnerable passengers, such as the elderly, infirm, or those carrying luggage.
