Pedestrians and contributory negligence
May 29, 2012
Perfect v MacDonald & Suncorp Metway Insurance Limited  QSC 11 (10 February 2012)
The plaintiff, a 15 year old boy, was walking with two companions in a suburban street in south Rockhampton. The defendant’s vehicle came up behind the pedestrians and the side mirror on the defendant’s van struck the plaintiff on his left shoulder. The plaintiff sustained injuries to his left shoulder, coccyx, teeth and jaw.
Liability was admitted. The issue was whether the plaintiff was guilty of contributory negligence.
McMeekin J accepted the evidence from the plaintiff’s companions and found the plaintiff had one foot on the road surface and one in the gutter as the defendant’s vehicle approached. The defendant argued that acting reasonably the plaintiff was obliged to get off the road entirely. However, his Honour held that:
‘… the plaintiff had every right to walk on the road surface if he wished. In doing so he must exercise ordinary care and prudence but he does not do so at his peril’.
His Honour also held that the plaintiff’s age was relevant in deciding what ordinary care and prudence demanded and found that a boy of not quite 15 does not have the same degree of ‘experience, understanding, judgement, and thoughtfulness to be expected of an adult’.
The process of apportioning blame for the accident required the judge to examine the conduct of the plaintiff and defendant, and to consider both of the degree of departure from the standard of care expected of a reasonable person in each of their positions, and the causative effect of the conduct. Typically, his Honour said, in pedestrian cases the heavier share of responsibility falls on the motorist.
His Honour noted when the defendant’s vehicle first emerged on the hill it was positioned sufficiently far out on the road that it represented no danger to the plaintiff if it maintained its course. The plaintiff was in clear view, and there was no traffic or other contingency that would have required the driver to take her attention anywhere else. The defendant’s vehicle then started to veer to the left but the plaintiff remained safe so long as the driver did not move within say two feet of the kerb. At some point his Honour found that it should have become apparent to the plaintiff that the driver was intending to pass close to him, and thus create a danger. The issue was whether at that point the plaintiff had time to react and remove himself from harm’s way. The onus was on the defendant to show that the plaintiff did have sufficient time, and the court found he didn’t.
The defendant also submitted that the plaintiff must guard against possible negligent acts on the part of an oncoming driver and remove themselves from the bitumen surface until the vehicle had passed. His Honour held that, that is not how people conduct themselves generally and if that proposition was right then other vulnerable road users, such as cyclists, have no business being upon the road surface. Such an approach would effectively mean that ‘pedestrians have only a theoretic right to walk on the road’.
In this case, McMeekin J held that the defendant’s departure from the standard of reasonable care was ‘gross’ and the plaintiff had acted with all reasonable care for his own safety. He made no reduction for contributory negligence.
Predictably, future loss of earnings was the main issue in dispute.
Quantum was assessed under the Civil Liability Act 2003 and McMeekin J assessed damages totalling $123,813.10.
The Court was required to refer to s55 of the CLA:
‘When earnings cannot be precisely calculated
(1) This section applies if the court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss.
(2) The court may only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.
(3) If the court awards damages, the court must state the assumptions on which the award is based and the methodology used to arrive at the award’.
The defendant submitted that s55 had altered the common law and where it was impossible to demonstrate the plaintiff will (not just may), suffer loss, no allowance could be made. His Honour rejected that submission. Citing Malec v JC Hutton Pty Ltd  HCA 20, His Honour noted that damages would be awarded for loss of earning capacity where ‘the chance of loss of earnings post accident was more than negligible but significantly less than 50%’.
His Honour examined the plaintiff’s injuries and the various restrictions they entailed and then looked at the potential duties required of an apprentice and concluded that:
‘The chances of the plaintiff suffering some loss of earnings over his lifetime due to the restrictions and weaknesses that this accident caused injuries have imposed are virtually certain’.
His Honour assessed future loss of earnings at $100,000.
This accident occurred in daylight, there was no reason for the defendant to be driving so close to the plaintiff’s position at the side of the roadway, and there was no reason that the defendant ought not to have seen the plaintiff there. The finding that there was no contributory negligence on the plaintiff’s part in those circumstances is perhaps unsurprising. The trial judge reminds us that although a pedestrian must have regard to the possibility of negligent acts on the part of motorists, he / she does not have to ‘guard against the possibility that the motorist would not only not drive with care but would drive as if the pedestrian were not there at all’.
Authored by Pru Connolly, Senior Associate, Brisbane.
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