Judgment date: 30 September 2011
Cherie Russell v Julie Ann Lozanes (unreported District Court of NSW)
- A verdict for the defendant will be entered where it can be shown that an accident was caused solely as a result of the inattention of a plaintiff.
- While each case will turn on its own facts, the court will look at, inter alia, the speed with which the plaintiff crosses the road, the level of intoxication, the design of the road and whether or not the driver is familiar with the accident site.
- The inattention of the plaintiff running across the road meant some form of accident was inevitable and any failure by the defendant to keep a proper lookout did not alter a finding of 100% for contributory negligence.
The plaintiff was injured as a pedestrian in a motor vehicle accident on 8 July 2001 at approximately 1.30 am.
The plaintiff was attempting to cross Richmond Road at the intersection of Lyton Street, Blacktown, when she was struck by the defendant's motor vehicle. The plaintiff gave evidence that she had no recollection of the accident, however she and a friend had had a few drinks since 6.00 pm at the nearby Adam's Tavern. The plaintiff had arranged for her daughter to pick her up at 10.00 pm, however the arrangements fell through. The plaintiff left the Tavern and her next recollection was some lights before waking up in hospital.
The plaintiff alleged an array of injuries including aggravation of a pre-existing back injury, severe brain damage resulting in some cognitive impairment, and the loss of all of her teeth. Of significance, the plaintiff had a history of prior alcohol abuse and extensive domestic violence.
The defendant gave evidence that she first saw the plaintiff running out on the road approximately 2-3 metres in front of her. The defendant swerved her vehicle to the right to avoid colliding with her, however was unsuccessful. The defendant estimated that she was travelling at approximately 45-50 km/h.
An independent witness travelling approximately 50 metres behind the defendant's vehicle confirmed the defendant's version of events. The independent witness estimated that the defendant was travelling at approximately 60 km/h.
District Court Decision
Her Honour entered a verdict for the defendant. In doing so, her Honour had regard to the evidence of the defendant, a statement of the independent witness, and expert evidence.
Unfortunately, there was very little evidence available which dealt with where the plaintiff was struck and fell, including evidence of skid marks. Both experts were in agreement that an appropriate perception and reaction time (the period from when the defendant first observed the plaintiff to when she commenced braking) would be 2 seconds. Her Honour rejected the evidence of the plaintiff's expert, who stated that due to the level of the plaintiff's intoxication, she would be moving at a fast walking pace, or at best, jogging, based on the evidence of the defendant and the witness who described the plaintiff as running.
Her Honour also accepted that the defendant's vehicle was travelling at approximately 60 km/h.
Based on the above findings, Her Honour concluded that even if the defendant had first observed the plaintiff standing on the side of the road, it would not have been possible to avoid striking her when she suddenly and without warning ran in front of the defendant's vehicle.
At paragraph 91 her Honour stated the following:
Her Honour also set out her reasoning on contributory negligence in the event that her findings as to liability were in error.
The plaintiff had submitted the appropriate reduction would be in the range of 40% to 60% and relied on a decision of Turkmani v Visvalingam2. In those proceedings a pedestrian had emerged onto the road at a jogging pace against a "Don't Walk" sign in peak hour traffic. In those circumstances, the trial judge had awarded 60% contributory negligence, which was later overturned by the Court of Appeal and assessed at 80%.
Her Honour noted that the reduction for contributory negligence should start at a higher level than Turkmani as the inevitability of the accident was such that a degree of contributory negligence would be exceptionally high.
In forming her view, Her Honour referred to the Court of Appeal decision of Mackenzie v Nominal Defendant3. Therein Justice Giles stated that when considering the degree of departure from the standard of care of the reasonable person and the acts of both parties in causing the damage, the subjective component must be tempered by regard to the level of the plaintiff's intoxication.
Her Honour noted that in the particular circumstances the plaintiff by her own evidence stated she was using her mobile telephone to attempt to have her daughter or a taxi come to take her home and was sufficiently aware of her actions to be able to make such arrangements. In addition, whilst the plaintiff's blood alcohol level of 0.16 was high, she had a prior history of alcoholism.
Her Honour concluded at paragraph 111 the following:
This case demonstrates the circumstances in a pedestrian claim where a court will award a verdict for the defendant and in the alternative, if breach of duty of care can be established, a finding of 100% for contributory negligence.
Such a decision will always turn on the specific facts of a matter, and require a series of findings on speed, perception and reaction time, and in the above matter, pre-existing alcoholism.
2 NSWCA 211
3(2005) 43 MVR 315
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