Justifying something that is deemed illegal is how laws change.
It is true that the world isn’t in black and white. But laws are and we must respond in kind.
If it isn’t justified, you should be able to come up with a rational argument against me, of which I’m amicable. The argument being about the driver having more responsibility.
To me, a person in a lesser position of control of a situation should be given more leeway in terms of outcomes. This is because with control comes responsibility and failure of that responsibility comes justice.
You would have to argue that the driver had less control over this situation.