Australia: Pedestrian found 60% contributorily negligent for motor vehicle

Curwoods Case Note
Last Updated: 1 July 2011
Article by Andrew Parker

Judgment date: 21 June 2011

Allianz Australia Insurance Limited v Glenn Swainson [2011] QCA 136

Queensland Court of Appeal1

In Brief

  • Where there is no independent evidence to the contrary, judges are entitled to draw inferences from the findings of fact based on common sense and their "own experience of life".
  • Intoxicated plaintiffs, who by their actions are the main cause of a motor vehicle accident, may bear the greater proportion of responsibility.


The plaintiff brought proceedings arising out of a motor vehicle accident which occurred at about 9.30 pm on 5 December 2006. Prior to the accident, the plaintiff had been at a local hotel where he had been consuming alcohol. Following his departure from the hotel, the plaintiff decided to walk the 6 km distance home. He decided to hitch hike (despite having his bicycle available to ride home from the pub), due to his intoxication.

In order to increase the likelihood of being picked up by a passing motorist, the plaintiff walked within the 'fog line' on the left-hand side of the road. That is, the plaintiff walked with his back to the traffic on the left-hand side of the road. The accident occurred approximately 2 km into the plaintiff's journey when the defendant's motor vehicle collided with the plaintiff.

District Court

The District Court judge found that the defendant was negligent by failing to keep a proper lookout and by failing to slow to a speed, so as to avoid the collision with the plaintiff. Essentially, the judge found that had the defendant seen the plaintiff earlier, moved his vehicle to the right, and/or slowed down, the collision would have been avoided.

In summing up, the trial judge held:

"Based on the damage to the first defendant's car on the left hand side, the first defendant's evidence that the plaintiff took one step only onto the road, the first defendant's evidence that the plaintiff was standing on or to the left of the fog line prior to the accident, it can be inferred that the first defendant hit the plaintiff just inside the fog line. ... It is true that in this case there is no independent evidence as to what distance ahead of the defendant's vehicle someone like the plaintiff would have been visible in low beam headlights. That does not prevent a finding being made that the plaintiff ought to have been seen by the defendant earlier than he was. In most of the decisions I have referred to there was no such evidence. In the absence of evidence, I am entitled to rely on my own experience of life, and on the evidence of the plaintiff as to the fact that he was aware of the defendant's lights illuminating the area in front of him before he began to turn. I accept that the plaintiff stepped to the right, which I had found occurred, was in response to his becoming aware of the approach of the defendant's vehicle in this way. From that time, or very soon after it, the defendant should have been aware of the presence of the plaintiff ahead."2 (our emphasis)

After finding the defendant negligent, the primary judge then reduced the damages awarded by 40% due to the plaintiff's own contributory negligence.

Of relevance to the primary judge's findings was the fact that the plaintiff was intoxicated (as defined by the Civil Liability Act 2003 (Qld)); failed to walk on the footpath provided; failed to walk on the right hand side of the road (thereby facing oncoming traffic); and stepped into the path of the defendant's vehicle when it was approaching.

Court of Appeal

The defendant challenged the findings of primary negligence, as well as the apportionment of contributory negligence.

In relation to the former, the defendant argued that the primary judge reached her conclusions by "engaging in unwarranted and unsupported speculation by relying on her 'own experience of life' and by engaging in hindsight reasoning"3.

Specifically, the defendant said that the primary judge's findings of fact did not justify the inference that the defendant should have seen the plaintiff in sufficient time to take evasive action and thereby avoid the collision. The defendant submitted that the findings were unsustainable in the absence of evidence on the throw of the headlights of the vehicle, so as to establish the extent to which the plaintiff would have been visible to the defendant's vehicle, and the reaction time the defendant had.

Ground 1 – Breach of Duty of Care

The Court of Appeal unanimously held that the defendant breached the duty of care owed to the plaintiff.

The Court held that whilst there was no "independent evidence" concerning the reach and throw of the headlights:

"the trial judge was correct in concluding that the absence of such evidence did not preclude the finding that the first defendant should have seen the plaintiff earlier. The trial judge's reference to her 'own experience of life' concerned no more than the use of common sense in drawing inferences from the evidence to which her Honour referred. That was entirely appropriate."4

The Court affirmed the primary judge's findings of fact and affirmed the finding that the defendant was negligent in failing to keep a proper lookout and failing to slow down and avoid the collision with the plaintiff. They held that whilst there was no doubt that the plaintiff had a part to play in the collision, there was no error in the trial judge's findings of primary negligence.

Ground 2 – Contributory Negligence

The defendant successfully argued that the plaintiff's conduct was more culpable than that of the defendant. The defendant argued that the primary cause of the accident was the plaintiff's intoxication and the fact that the plaintiff stepped onto the road directly into the path of the defendant's vehicle, which gave the defendant only a limited opportunity to observe and take action to avoid the collision.

In overturning the primary judge's findings and assessing contributory negligence at 60%, the Court of Appeal said:

"All other things being equal, a driver of a car should ordinarily bear the lion's share of the responsibility where the driver's negligence results in injury to a pedestrian whose negligence contributes to the collision, because a driver has a far greater capacity to cause damage than the pedestrian. In this case, however, all other things were far from being equal. It was the plaintiff's conduct in standing very close to the edge of the left lane in a relatively dark area at night which initially created the danger. The first defendant's only fault was in failing to avoid that danger by keeping a proper lookout and slowing down or deviating. In addition to creating the initial danger, the plaintiff also precipitated the collision by stepping onto the roadway in circumstances in which he knew that a car was approaching. That was inadvertent conduct but it was presumably contributed to by his 'intoxication'."5


The decision establishes that whilst a driver will generally be held to a high standard of care, a plaintiff, whose inadvertent conduct is contributed to by intoxication, may be found to have significantly contributed to their own loss.

Further, a trial judge will not fall into error where an inference is drawn in the absence of evidence by relying on their own experiences of life. This is a common sense approach to issues of causation.

Andrew Parker

Curwoods Lawyers

1 Fraser JA; Ann Lyons J; Martin J

2 Swainson v Carruthers & Anor (unreported, DC(Qld), McGinness DCJ, No 199/09, 5 October 2010 at 43-44, as referred to by Fraser JA at para 5

3 per Fraser JA at para 8

4 per Fraser JA at para 24

5 per Fraser JA at para 31

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