Torts – negligence – pedestrian injury – contributory negligence – future economic loss – discount for contingencies
The Plaintiff was struck by a car when walking at night along a rural road which had no artificial lighting. He was found to have been walking about 50cm onto the roadway. He was wearing a dark T-shirt with a white motif and carrying a white plastic bag containing beers.
The Plaintiff did not walk off the side of the roadway because there was grass about 50cm high, he was unsure how stable the ground was, or if there were holes or snakes, and felt it would be safer to be on the edge of the roadway.
There were two cyclists approaching from the opposite direction with bright lights.
Expert evidence was called which suggested that with lights on low beam, the distance from which the Plaintiff should have been detectable by the driver was 80 metres, and that the Plaintiff could have been identified as a pedestrian at more than 50 metres. At 60km/h, with a reaction time of two seconds, it was said that the stopping distance would be 55.1 metres.
The Plaintiff was 32 years old and an electrician. He was to have started work at Peak Downs Mine and would have earned a little over $2000 nett per week. Following the accident, he had to find alternate work as a smoke alarm technician.
On 2 November 2023, judgment for the Plaintiff in a sum of $987,654. No finding of contributory negligence.
The Defendant’s evidence that the Plaintiff was well out onto the road and that he did not see the Plaintiff until 10 metres away was not accepted. The driver had failed to keep a proper lookout and failed to take evasive action and steer clear in a timely manner. Had the Defendant been keeping a proper lookout, he would have observed the Plaintiff at a distance of about 80 metres and had ample time to stop.
The Defendant bears the onus of establishing contributory negligence and the Defendant has not discharged that onus to show the Plaintiff was guilty of negligence.
In assessing the discount for contingencies on future economic loss, the positive and negative vicissitudes need to be considered. Balancing these features, the general continency discount was set at 12.5 per cent.
Travis Schultz is Managing Partner at Travis Schultz & Partners.