Allianz Australia Insurance Limited Appellant ABN 15 000 122 850 v Christopher Ross Eden Respondent

[2024] QCA 49

[2024] QCA 49

COURT OF APPEAL

DALTON JA
BODDICE JA
FRASER AJA

Appeal No 14918 of 2023
SC No 1573 of 2022

ALLIANZ AUSTRALIA INSURANCE LIMITED  Appellant
ABN 15 000 122 850

v

CHRISTOPHER ROSS EDEN  Respondent

BRISBANE

WEDNESDAY, 3 APRIL 2024

JUDGMENT

DALTON JA:  This case concerns contributory negligence in the context of a road accident.  Having consumed a couple of beers, Mr Eden set off on foot along the Dysart Bypass Road, to visit a friend.  It was after sunset, and there was no artificial lighting on the road.  Mr Eden was wearing a T-shirt with a white motif on the back and carrying a white plastic bag containing more beer to share with his friend.  These things should have helped make him visible.

He was heading north, and he walked on the western side of the bitumen roadway.  The primary Judge found that Mr Eden walked about 50 centimetres in from the edge of the roadway, and in a straight line parallel to the roadway.  The roadway itself was straight.  There was no footpath.  The verge to the west (Mr Eden’s left-hand side) was overgrown with long grass.  The verge to the east was also overgrown. As well, Mr Eden knew that it fell away sharply into a drain.

Walking in this way, Mr Eden was hit from behind by a Toyota HiLux utility vehicle.  It was probably the mirror of the HiLux which struck him.  The driver of the HiLux was 80 years old.  He gave evidence that he did not see Mr Eden until he was about 10 metres away from him.  No doubt that was his impression, but other evidence, of a technical kind, proved that the driver must have seen Mr Eden when he was about 30 or 35 metres away.  The driver braked and swerved to his right in an attempt to avoid Mr Eden.  In doing so, he unfortunately hit a cyclist who was travelling towards the HiLux on the other side of the road.

The Judge found that the driver of the HiLux was negligent, and that was not challenged on appeal.  The only issue on appeal was whether not Mr Eden contributed to his own injuries by walking on the western side of the roadway, in breach of a regulation.

The Judge accepted Mr Eden’s evidence as to how he came to be on that part of the road at the time of the accident. In leaving to walk to his friend’s house, Mr Eden first walked long the street in which he lived. Then he turned to the right, onto a dirt track which connected that street to the Dysart Bypass Road. When Mr Eden came to the Dysart Bypass Road, he chose to walk on the western side of the road because he knew about the steep verge which fell away from the road on the eastern side. He chose not to walk on the verge of the road because the grass was about knee-high, and he was worried about snakes and “…how stable the ground was if there was holes or anything in the ground.” – [5] below.

Mr Eden intended to cross to the eastern side of the Dysart Bypass Road; however, soon after he began walking on the western side of the bitumen roadway, Mr Eden saw two bright lights coming towards him from the north on the other side of the road.  The Judge said:

“I accept Mr Eden’s evidence that he originally thought the lights were from a motor vehicle and so he stayed on the left-hand side of the road, with the intention to pass over to the right-hand side of the road after that vehicle passed him. It was only when the lights came closer, Mr Eden could determine that the lights were not the headlights of a motor vehicle, but were two bike riders with bright headlights.” – [4] below.

Soon after that, Mr Eden was struck by the HiLux.  On this appeal the appellant relied on s 238(2) of the Transport Operations (Road Use Management – Road Rules) Regulation 2009.  That provides:

“Pedestrians travelling along a road (except if using a wheeled recreational device or a wheeled toy)

(1)a pedestrian must not travel along a road if there is a footpath or nature strip adjacent to the road, unless it is impractical to travel on the footpath or nature strip.

(2)A pedestrian travelling along a road –

(a)must keep as far to the left or right-hand side of the road as practicable; and

(ab)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;

(b)must not travel on the road alongside more than one other pedestrian or vehicle travelling on the road in the same direction as the pedestrian, unless the pedestrian is overtaking other pedestrians.” (My underlining.)

Regulation 238(2)(ab) is poorly worded.  The appellant asked this Court to find that it meant that a pedestrian should walk along the roadway so that they were on the same side as, and facing, oncoming traffic.  That is, in the instant case, the appellant contends that Mr Eden ought to have been walking on the east side of the road.

I can understand that at a theoretical level walking on a roadway facing approaching traffic on the same side of the road as that traffic might be safer.  The pedestrian will see approaching traffic, and it is probably more likely that the approaching traffic will recognise the pedestrian earlier.  Probably the construction of the regulation urged by the appellant is correct.  However the difficulty facing the appellant is that the words of reg 238(2)(ab) do not clearly say that.  In fact, just before the accident, Mr Eden was doing what the literal words of the regulation provide; he was facing the approaching traffic (the bicycles) which were moving in the opposite direction which he was moving.  This meant he had his back to the HiLux.  Perhaps the legislature should give consideration to making the provision at reg 238(2)(ab) clearer.

In any event, it is not necessary to decide whether or not the provision ought to be interpreted as the appellant contends, for in this case it seems clear that the proviso to reg 238(2)(ab) applies.  Even if the regulation is construed as meaning that Mr Eden ought to have been walking on the east side of the roadway, he was only obliged to do so if it was not impractical for him to do so.  Here it seems to me that the facts found by the primary Judge meant that it was impracticable to do so.  Mr Eden had only begun walking on the Dysart Bypass Road a short time before the accident.  From the time he commenced to do so, or almost from the time he commenced to do so, he could see lights coming from the north towards him, and rather than cross the road in front of them to walk on the eastern side of the roadway, he decided to wait until what he thought was a vehicle had passed.

It was not pleaded that the contributory negligence in Mr Eden commencing to walk on the western side of the Dysart Bypass Road for the short time between his arriving at the intersection of that road and the dirt track, and his seeing the lights travelling south towards him.  This matter remained unexplored at trial, and there was no precise evidence about how long Mr Eden walked on the western side of the road before seeing the oncoming lights.  It appears to have been a very short time.

In circumstances where the road was dark and Mr Eden interpreted the two bicycle lights as an oncoming vehicle, I think it was impracticable for him to cross the road and begin walking on the eastern side of the roadway where to do so (1) would have crossed in front of what he thought was an oncoming car, and (2) would have put him on the eastern side of the road where he knew the verge fell away so that he could not safely use it if the car (as he thought it) did not pull into the centre of the road when it drew level with him.

The primary Judge found that in walking on the western side of the road, Mr Eden took the safest course available – [59]. The appellant’s counsel came to this Court saying expressly that he did not challenge any factual findings made by the primary Judge. Belatedly seeking to depart from this position, he could not point to any facts, matters, or circumstances which would compel this Court to come to a different conclusion from the Judge below.

The reasons for Mr Eden walking on the roadway itself, rather than footpath or nature strip (reg 238(1)) have already been canvassed.  In these circumstances, it seems to me that the appeal must be dismissed.

BODDICE JA:  I agree.

FRASER AJA:  I agree.

DALTON JA:  All right.  The orders should be the appeal is dismissed with costs; is that right?

MR CULLINANE:  Yes, your Honour.

MR MORTON:  Thank you, your Honour.

DALTON JA:  All right.  The appeal is dismissed with costs.  A transcript of the reasons is required.  Could you adjourn the Court, please.