Keywords
Contributory Negligence, Transport Operations (Road Use Management – Road Rules) Regulation 2009, Negligence, Pedestrian Injury, Appeal
Facts
In the primary judgment,1 the Plaintiff, Mr Eden, was struck by a car when walking at night along a rural road which had no artificial lighting. Mr Eden had intended to cross to the eastern side of the road, however, soon after he began walking along the western side, he saw two bright lights coming towards him from the north on the other side of the road.
Assuming the lights were car headlights, Mr Eden stayed on the western side, and it wasn’t until the lights got closer that he realised they belonged to the headlights of bike riders. Soon after, the Plaintiff was hit from behind by a Hilux. The Judge found that the driver was negligent and there was no finding for contributory negligence.
On appeal, the only issue was whether Mr Eden contributed to his own injuries by walking on the western side of the roadway, in breach of a regulation.
Decision
Dalton JA, Boddice JA, Fraser AJA, decision delivered 3 April 2024. The appeal is dismissed with costs.
Ratio
On appeal, the Appellant relied on s 238(2) of the Transport Operations (Road Use Management – Road Rules) Regulation 2009, specifically, that a pedestrian travelling along a road must, when moving forward, face approaching traffic that is moving in the direction opposite to which the pedestrian is travelling, unless it is impracticable to do so.
Consequently, the appellant contended that Mr Eden ought to have been walking on the eastern side of the road, being the side approaching oncoming traffic. Â
The problem with the provision, as identified by the Judge, was that Mr Eden was doing what the literal words of the regulation provide, being that he was facing the approaching bicycles. However, in doing so, he had his back to the Hilux.
Despite this, the Judge found that it is not necessary to determine whether the provision ought to be interpreted as the appellant contends, because Mr Eden was only obliged to walk on the eastern side if it was not impracticable to do so.
The Judge determined that it was impracticable for Mr Eden to cross the road and begin walking on the eastern side of the road, where to do so, he would have crossed in front of what he thought was an oncoming car (being the bicycles), and it would have put him on the eastern side of the road, where he knew the verge fell away.
The primary Judge found that in walking on the western side of the road, Mr Eden took the safest course available. The Appellant did not challenge any factual findings made by the primary Judge, nor could they point to any facts, matters, or circumstances which would compel the Judge to come to different conclusion. Therefore, the appeal was dismissed.
Footnotes
1 Eden v Jamieson & Anor [2023] QSC 240
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