Defendant driver defeats claim by careless Pedestrian

Motor Vehicle Directions

Kim v Welliwatte [2014] ACTSC (24 July 2014)

On Thursday 24 July 2014, Acting Justice Ashford of the Supreme Court of the Australian Capital Territory handed down judgment in this case which considered liability and contributory negligence in a motor vehicle collision involving a pedestrian. Our Canberra office secured a verdict for the defendant.

Background

On 30 September 2010, at approximately 6:30 pm, the plaintiff alighted from a bus after work on LaPerouse Street in Red Hill, ACT. His usual practice was to cross the road and walk to his home nearby.

The defendant was driving along LaPerouse Street with his headlights turned to low beam. It was dusk and the street lights were on, although they offered limited light. The defendant was familiar with the street and knew that passengers often alighted from buses at the bus stop.

The plaintiff crossed to the middle of the road when he was struck by the front right side of the defendant’s vehicle.

Liability

Both parties presented expert liability evidence, however her Honour preferred the defendant’s expert evidence as to braking time, perception time, and the distance at which the plaintiff would have been able to be seen by a driver in the defendant’s position. Her Honour concluded that there was nothing the defendant could have done to avoid the collision, even if he had seen the plaintiff at the earliest opportunity and applied his brakes immediately.

The plaintiff alleged the defendant should have used his high beam headlights because of the poor illumination provided by street lighting. Senior Constable Stoken gave evidence that in his opinion it was appropriate for the driver to use his discretion about whether to use high beam headlights. Acting Justice Ashford accepted there was no positive duty to use high beam headlights in a residential street which had street lighting. Her Honour also accepted the defendant’s expert evidence that the use of high beam headlights would not have allowed the defendant to see the plaintiff in sufficient time to react to avoid the accident in any event.

The plaintiff failed to prove the defendant was negligent.

Contributory negligence

In the event of a successful appeal against her decision on primary liability, her Honour considered contributory negligence.

Her Honour found that the plaintiff had been wearing dark clothing and had earphones in his ears when he crossed the road. Whether or not music was playing at the time, her Honour considered the use of earphones made it unlikely the plaintiff would be able to hear an approaching vehicle. Her Honour was not satisfied that the plaintiff had looked for oncoming cars prior to crossing the road, because if he had, he would likely have observed the defendant’s headlights approaching him.

Furthermore, her Honour found that a crossing island a short distance from the bus stop had probably not been used by the plaintiff. The use of the crossing island would have required a detour of only a matter of metres, and would have allowed the plaintiff a safe refuge in the middle of the road.

Accordingly, her Honour indicated that if the plaintiff had not failed on liability, any award of damages would have been reduced by 75% for contributory negligence.

Analysis

The decision highlights the expectation that all road users, including pedestrians, need to take responsibility for their own safety and ensure their conduct is appropriate in the circumstances. A pedestrian who is reckless, or recklessly indifferent to their own safety will have a difficult time establishing liability, and at the very least they should be considered to a large degree responsible for their own misfortune.

The ‘Blameless Accident’ provisions of the Motor Accidents Compensation Act were not available to the plaintiff in this case, as the accident occurred in the ACT.


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