By Stuart Eustice, Partner, Holly White, Lawyer & Zoe Vlahogiannis, Law Graduate

The plaintiff, Mr Walker, attended happy hour at his local pub in the small country town of Rushworth, where he drank approximately 16 pots of beer over the course of the afternoon and evening. The plaintiff gave evidence that he did not regard himself as being intoxicated or unsteady on his feet. The highway through Rushworth reduces to 60km/hr with one lane in each direction.

As the plaintiff was walking home, he was struck by a vehicle driven by the defendant, Mr Smith. The plaintiff gave evidence that he did not hear the oncoming vehicle or see headlights.

The Court accepted evidence that:

1. the plaintiff was wearing dark clothes;
2. the plaintiff was walking along the edge of the highway with his back to oncoming traffic;
3. there were no other vehicles passing at the time of the incident;
4. the defendant was driving at or under 60km/hr when he ‘saw a figure arrive on the road’ and ‘automatically swerved’; and
5. the lights of the defendant’s vehicle were on high beam and while there were pedestrian lights, they did little to illuminate the road.

The defendant submitted that he did not depart from the standard of care required of a driver of a motor vehicle and that a prudent and overly cautious driver would have no reason to believe that a pedestrian might be standing or walking on the highway. While the defendant attempted to avoid the plaintiff, he argued that in finding that he ought to have done so in the available time and space placed too high a standard of care on a driver.

Her Honour Justice Forbes did not accept this submission, stating that the defendant’s submission that the plaintiff’s appearance was ‘sudden’ and the fact that he swerved but did not have time to brake, led to an inference that he was not keeping a proper lookout immediately prior to the incident. Had the defendant done so, the incident may have been avoided.

However, Justice Forbes also held that the plaintiff’s actions of walking on the edge of the road at night with his back to oncoming traffic while intoxicated was the explanation for why the plaintiff did not hear or see the approaching vehicle. This disregard for his own safety was of greater significance than that of the defendant’s failure to keep a proper lookout.

Justice Forbes apportioned the negligence of the defendant at 30% and contributory negligence of the plaintiff at 70%.

The full decision can be read here: https://aucc.sirsidynix.net.au//Judgments/VSC/2022/T0188.pdf