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March 21, 2018

Intoxicated pedestrian found two thirds liable



O’Connor v. McGregor [2015] WADC 30

In O’Connor, the Plaintiff was a pedestrian who was hit at night by a school bus while walking in the same direction as the bus. Other relevant facts include:-

  • The Plaintiff had been at a wedding and was walking along Leeman Road at about 1:25am;
  • That he had a blood alcohol reading at the time of his death of 0.127;
  • That he was wearing dark clothing except for a white tie and shoes;
  • That the driver did not see the deceased prior to the accident;
  • That the road was a standard two lane road with a solid line down the edges with a dotted white line down the middle;
  • That the area was semi rural with a new residential development on the Southside with some nearby field and scrub;
  • That there was no footpath on either side of the road;
  • That there was no street lighting;
  • That it was a dark night without any ambient moon lighting;
  • That when he was walking along the roadway he was having phone conversations with his girlfriend;
  • That there was a slight left hand curve in the road at about the impact point.
  • The Plaintiff asserted that the deceased’s death was caused by the negligent driving of the Defendant.

Not surprisingly the Defendant denied any negligence whatsoever. Their case was that he was wearing dark clothing in an unlit area while walking with his back to the traffic on a road when it was not safe to do so whilst under the influence of alcohol.

The main issues in the Court’s view for determination were:-

  • Whether the Defendant should have seen the Plaintiff;
  • If the Defendant had of seen the Plaintiff would be of been able to avoid the Plaintiff in any event;
  • If the answer to questions 1 and 2 were affirmative to what extent did the deceased’s conduct contribute to the accident.

A witness who was a passenger on the bus gave evidence that he looked up shortly before the impact point to see the deceased “almost instantaneously.” He described that as soon as he saw this person they were struck by the bus. However, he too was intoxicated and that by the Trial could not recall seeing the pedestrian prior to him hitting the bus but was able to at a more contemporaneous time.

Expert evidence was called from an expert in optometry and vision science from the University of New South Wales, Professor Dain. He gave some explanation as to the detection of objects on a roadway which essentially depended on the luminance of the object and the background. He also commented on another expert report (Dr Chew) and the reaction time and stopping distances relevant to the situation. He was doubtful about the veracity of the photographic process faithfully representing the brightness of the headlamps on the night. Professor Dain referred to a number of studies involving pedestrian and other subjects visibility and noted that a common factor in the studies was that the visibility distances for dark coloured objects under high beam was in the order of approximately 100m and that the absolute worst case of visibility is around 60m. However, he noted that these cases were from a single pair of headlights whereas the bus involved here had two pairs of high beam headlights which would have increased the visibility distance. Professor Dain asserted that he could find no reason why the driver did not see the deceased at some stage prior to the approach and certainly over distances shorter than 60m. He believed he would have become increasingly more visible in the headlights of the bus as he approached him.

Overall, the Court came to the view that it was impossible to conclude anything other than the fact that the driver was not keeping a proper lookout in the circumstances given that he admitted he failed to see the deceased at any time prior to the impact. Interestingly, the Court noted at paragraph 73 that given the evidence and the Defendant’s concession in relation to him not seeing the deceased at any time prior to the accident that this “excludes any reasonable scenario that the accident was caused by the deceased running out into the path of the vehicle.”

The Court then considered the causation point, namely would the Defendant have been able to avoid the collision if he had of been keeping a proper lookout. This took into account the distance upon which the deceased should have been become visible to him, the speed at which he was travelling and a driver’s reaction time.

Based on the evidence from Professor Dain, the Court accepted that the visibility available to the driver was at worst, some 60m, and on the balance of probabilities, closer to 100m. Taking into account usual reaction times and the circumstances the Court thought the mean time available for the Defendant to act was between 3 and 6 seconds at a speed of 50kph.

The Court found that, without even looking at the scientific evidence and applying common sense of a period of 2 to 3 seconds was sufficient time to take some evasive action. The Court came to the conclusion that had the driver seen the deceased at the time he became visible in the headlights (assessed at a conservative basis of 60m), that with urgent evasive action he would have been able to avoid the impact and that failing to see him he lost such opportunity. However, the Court found the Plaintiff was contributory negligent to the extent of two thirds (66%) with the Defendant driver one third (33%) liable.