O’Connor -v- Insurance Commission Of Western Australia [2016] WASCA 95

The WA Court of Appeal delivered its decision in this matter on 9 June 2016. SRB Legal represented the respondent defendant at trial and in the Appeal.

The Appeal was by the estate of a pedestrian killed in a motor vehicle accident. The District Court had found the Respondent motorist negligent and then applied a reduction for contributory negligence of two thirds.

The deceased had been walking on a rural road at 1.30 am. He was wearing a black suit. There was no artificial lighting at the scene. His blood alcohol content was 0.127%. He was walking with his back to approaching traffic, adjacent to a small drainage ditch. On that side of the road there were no buildings. It was grazing land. The deceased was likely talking on his mobile phone at the time that he was struck.

The trial judge found that the defendant was driving a Toyota Bus. He had several passengers. He was travelling at 50 kph. Taking all aspects of his driving into account, the trial judge said his driving was exemplary, except for failing to see the deceased in time to take action to avoid him.

After considering each party’s departure for from the relevant standard of care, the trial judge found as follows:

The … Deceased was ‘significantly more to blame’ than (the Respondent) ‘for bringing about circumstances in which this tragic event occurred, and failing to react to save himself’ [97]. The deceased ‘created a situation where an accident would happen unless (the Respondent) took swift emergency action to avoid it’ [97]. (The Respondent’s) fault was, in those few seconds, ‘failing to see the [Deceased]’ [97].

The facts were very important to the outcome of the case and were not subject to any challenge by the Appellant.

One of the key submissions made by the Appellant was to the effect that in every case where a motorist does not see a pedestrian, the apportionment will favour the pedestrian. His Honour Buss JA (with whom McLure P and Mazza JA agreed) said this submission was misconceived and each case must be examined on its merits: at [82].

The Court also found that there was no error in the findings and analysis undertaken by the trial judge. This could be summarised as Buss JA set it out in para [85]:

(a) Her Honour’s unchallenged findings of fact.
(b) Her Honour’s unchallenged finding that the Deceased’s conduct was ‘reckless’ [88], [94].
(c) Her Honour’s unchallenged findings that (the Respondent’s) breach of duty involved ‘a brief deficit of attention’ and that, by contrast, the Deceased was engaged in ‘ongoing conduct on the road’ that was ‘obviously dangerous to himself and other road users’ [92].
(d) The Deceased walked on the road when there was adequate room for him to walk off the road.
(e) The Deceased walked on the wrong side of the road; that is, with his back to oncoming traffic.
(f) The Deceased wore black clothing: his white tie would not have been visible and his white shoes would have been very difficult to see even if (The Respondent) had been keeping a proper lookout.
(g) The Deceased should have heard the Bus and been aware of its headlights in sufficient time to take evasive action.
(h) There was a curve in the road at the point of the collision and this would have made it more difficult for (the Respondent), if he had been keeping a proper lookout, to see the Deceased in sufficient time to take evasive action.
(i) At night and with no moon or street lighting and no other traffic, it should have been easier for the Deceased to hear the Bus and be aware of its headlights than it would have been for (the Respondent), if he had been keeping a proper lookout, to see the Deceased.
(j) A reasonable person in the position of (the Respondent) would not readily anticipate encountering a pedestrian who was walking on the road, in black clothing and with his back to the oncoming traffic, at about 1.30 am.

Although the deceased’s intoxication was considered by the Court of Appeal, given the relevance of s 5L of the Civil Liability Act 2002, there was no express mention of the intoxication of the deceased as a factor in the actual apportionment reached, other than to note that the Appellant conceded contributory negligence due to intoxication.
 
The Court of Appeal did not express an opinion about the correctness of a line of NSW authority based on NSW legislation similar in terms to s 5K of the Civil Liability Act (WA), as the trial judge had not approached the assessment in that fashion. The trial judge had proceeded under s 4(1) of the Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 (WA).

This decision provides further weight, when considering pedestrian cases, to the propositions that;

1. each case must be considered in lights of its own facts;
2. the test required of the Court is to take into account all the circumstances of the case and consider each party’s departure from reasonable conduct in the position of that party; and
3. there is no presumption that where a motorist does not see a pedestrian that any apportionment will favour the pedestrian.