Huynh v Minh Truong & Thi Thu Hoang Pham t/as Le Bon Bakehouse
[2018] WADC 38
•26 MARCH 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: ROWE -v- ROSE [2018] WADC 38
CORAM: GOETZE DCJ
HEARD: 20-24 NOVEMBER 2017
DELIVERED : 21 MARCH 2018
FILE NO/S: CIV 1011 of 2016
BETWEEN: PAULA ANN ROWE
First Plaintiff
BENJAMIN LIAM PRIME (an infant) and JOSHUA STEVEN PRIME (an infant) by their Next Friend and mother PAULA ANN ROWE
Second PlaintiffsAND
CHARMANE REGINE ROMUALDO ROSE
Defendant
Catchwords:
Fatal Accidents Act 1959 - Death of pedestrian - Liability of driver of motor vehicle striking pedestrian - Assessment of loss and damage for circumstances involving a family with two dependant school age children where the only form of income was social security benefits - Turns on own facts
Legislation:
Civil Liability Act 2002
Result:
Judgment for the plaintiffs
First plaintiff $169,500.26
First Second-named plaintiff $ $6,084.65
Second Second-named plaintiff $10,056.63
Representation:
Counsel:
First Plaintiff : Mr D I Connor
Second Plaintiffs : Mr D I Connor
Defendant: Mr C C Rimmer
Solicitors:
First Plaintiff : Connor Legal
Second Plaintiffs : Connor Legal
Defendant: Spark Helmore Lawyers
Case(s) referred to in judgment(s):
Alexander v Manly [2004] WACA 140
Manley v Alexander (2005) 223 ALR 228; 2005 HCA 79
McLean v Tedman (1984) 155 CLR 306
O'Connor v Insurance Commission of Western Australia [2016] WASCA 95
O'Connor v Lloyd [1962] WAR 37
Pennington v Norris (1956) 96 CLR 10
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529
Proudlove v Burridge [2017] WASCA 6
Radovanovic v Motor Vehicle Insurance Trust [1980] WAR 105
GOETZE DCJ:
Introduction
Mr Duncan James Prime died one week after he was struck by a motor vehicle driven along Preston Point Road, Bicton by the defendant, Ms Charmane Regine Romualdo Rose.
It is alleged that Mr Prime's death was caused by the negligent driving of Ms Rose. The defence denies that any negligence on the part of Ms Rose caused his death and alleges that Mr Prime's own negligence contributed to his death.
This claim then seeks to establish liability for Mr Prime's death and to quantify any damage flowing to his family by reason thereof.
Mr Prime
At the date of Mr Prime's death, he was 41 years old. The first plaintiff, Paula Ann Rowe, was his partner. She is the mother of the two second plaintiffs, who are the sons of Mr Prime, being Benjamin Liam Prime and Joshua Steven Prime, then aged 10 and 5 years respectively.
At all relevant times, Mr Prime and Ms Rowe were in receipt of Centrelink allowances.
It was Mr Prime's habit to walk his dog each evening before retiring to bed. This involved exiting his home and walking with the dog to a nearby tree on the other side of Preston Point Road, for the benefit of his dog. He and the dog would then return home.
Ms Rose
Ms Rose lived at 2D First Street, which intersects Preston Point Road, some four blocks and 550 m from Mr Prime's home.
The death of Mr Prime
At approximately 10.00 pm on 20 May 2013, Ms Rose drove her motor vehicle from her home and turned into Preston Point Road, driving in an easterly direction. Her motor vehicle struck Mr Prime on the roadway as he was walking his dog. There were no eyewitnesses.
Another motorist, Mr Stuart James Kingsbury, approached the scene from the east along Preston Point Road shortly after the occurrence of the knock‑down. Mr Prime's partner, Ms Rowe, also attended the scene shortly after Mr Kingsbury's arrival.
Later that evening, the police attended at the scene.
Mr Prime died one week later on 27 May 2013.
The evidence
A lot of the evidence was not disputed.
It was a clear dry night on 20 May 2013.
The knock‑down occurred adjacent to the boundary between the homes of Mr Prime and his next door neighbour, being 287 and 291 Preston Point Road respectively. Both houses are on the northern side of Preston Point Road.
At the scene of the knock‑down, Preston Point Road runs in an approximate east-west direction. It was sealed, in good repair, dry and relatively flat, with a low rising incline from west to east towards Mr Prime's home.
Preston Point Road is 9.7 m wide. It comprises two bike lanes, each being 1.2 m wide. The east-bound lane is 3.8 m wide and the west‑bound lane is 3.5 m wide. The traffic lanes are separated by a broken dividing line, the last of which is at a point approximately adjacent to the boundary between 287 and 291 Preston Point Road. There is then an unbroken dividing line commencing adjacent to house number 291 which leads to a median strip, with a keep left sign, before the intersection of Waddell Road.
The speed limit along Preston Point Road is 50 km per hour.
The home in which Mr Prime and his family resided is located in a complex of eight units, each of which can be accessed by a common to the driveway off Preston Point Road.
Looking to the east from this common driveway, the northern side of Preston Point Road to corner of Waddell Road comprises:
1.a wall into which letter boxes are mounted;
2.a small gate for pedestrian access to and from the complex in front of which is a tree on a large verge;
3.some more wall;
4.a large gate which was permanently closed in front of which is a single car driveway leading to Mr Prime's unit;
5.a small island verge between the respective driveways, and adjacent to the boundary, of the two houses at 287 and 291 Preston Point Road. On this verge is a street light which hangs over the east‑bound bicycle lane;
6.a double driveway, just referred to, in front of 291 Preston Point Road;
7.a large tree on the verge in front of 291 Preston Point Road; and
8.another large tree on the verge in front of the property to the east of 291 Preston Point Road, which property is on the corner, being 89 Waddell Road.
Further, there are trees at regular intervals along both sides of Preston Point Road. There are also street lights at regular intervals along both sides of Preston Point Road.
At the time of the knock‑down, Mr Prime was wearing dark clothing, including a hoodie. He had consumed two or three Corona beers that evening. He more probably than not had another beer in his hand at the time of the knock-down. Subsequent tests indicated he had an ethanol reading of 0.12% and a blood alcohol content of 0.1%.
Ms Rose was the only witness able to give any evidence of the knock‑down.
Ms Rose
Ms Rose left her home and drove her motor vehicle in an easterly direction along Preston Point Road.
In her statement given to an insurance investigator, Ms Rose indicated the speed of her vehicle before impact as being about 55 km per hour and also that, at impact with Mr Prime, it was 55 km per hour. In answers to interrogatories, Ms Rose said she was travelling at 'no more than 55 to 60 kilometres per hour'.
Ms Rose's evidence was that she drove at an estimated speed of 'no more than 55 kph'. The speedometer was 'halfway between the 50 and 60 or less than that'.
In cross‑examination, she could only recall 'about 55 kilometres an hour'.
Ms Rose said she was not good with distances. She variously gave evidence that she was first aware of the presence of Mr Prime on the roadway when her motor vehicle was about 3 m west of, and at an angle of 45 degrees to, the street light on the small island verge which was in line with boundary between 287 and 291 Preston Point Road. Her car was then under the glow of the street light and Mr Prime was between 2 – 5 m away from her motor vehicle standing next to the unbroken dividing line. She told police that she was 'right on top of him'. In evidence, she confirmed this statement was correct.
Ms Rose said that when she first saw Mr Prime, he had his back towards her and was slightly side‑on. He was one step from crossing into the west‑bound lane of Preston Point Road. She was unable to recall him walking or moving. She said that impact between her car and Mr Prime occurred at this point.
In cross‑examination, Ms Rose said that when she first saw Mr Prime he was 5 m in front of her. Then, by reference to the layout of the courtroom, her evidence was that Mr Prime was approximately 5 m or less from her when she first saw him. Using the same reference to the courtroom, Ms Rose confirmed her distance to the street light at 3 m.
Further, by reference to her own height, Ms Rose was able to determine that Mr Prime was approximately 2 m away from her motor vehicle when she first saw him. At the conclusion of her evidence, she determined that Mr Prime was between 2 and 5 m away from her car when she first saw him.
In evidence, Ms Rose insisted that Mr Prime was not standing under the street light when she first saw him. However, shortly after the knock‑down, Ms Rose drew a sketch for the police in which she indicated that she first saw Mr Prime when he was towards the centre of the roadway in the east bound lane approximately in line with the street light on the small island verge in the front of his property.
Ms Rose also drew relevant locations on an overhead photograph of the scene on which she located the positions of herself and Mr Prime at the time she first saw him. She located her motor vehicle adjacent to the small gate leading to Mr Prime's home and Mr Prime on the eastern end of the unbroken dividing line. She was unable to confirm whether her sketch provided to the police or the overhead photograph as marked by her was correct as to the position of both herself and Mr Prime when she first saw him.
A month after the knock‑down, Ms Rose provided a statement indicating that the street lights were on and that
there was a street light almost next to where the collision occurred.
She agreed in evidence that this statement was likely to be correct.
Ms Rose agreed that Mr Prime was moving from her left to her right. However, she did not see him for long enough to say that he was walking.
Ms Rose said that, having seen Mr Prime, she 'slammed on' the brakes. At the same time, she also sought to swerve around Mr Prime by steering to the left, but the right side of her motor vehicle struck him and he smashed the windscreen. She brought her motor vehicle to a halt in the middle of the east‑bound lane adjacent to the tree outside 89 Waddell Road.
Ms Rose said that Mr Prime's body ended up in the west-bound lane, close to the western end of the unbroken dividing line.
Ms Rose claimed that her vision of Mr Prime was blocked by reason of a combination of the uphill slope of the road and the bonnet of her car.
Ms Rose also said she was always cautious at night on that part of the road because she had previously had a bad experience there and she 'can't always see over the hill'.
In cross‑examination, Ms Rose was shown a photograph taken from 60 m west of the small island verge in the front of Mr Prime's home. This photograph looks to the direction of the knock‑down. It was taken at night. She agreed she could see a dark figure crossing the road under the street light in that photograph and although she could not really see a crest in the roadway, she maintained that her car bonnet would have blocked her view up the road. She disagreed with the proposition that the roadway was level or very close to level.
When asked about expert evidence based on her estimation of where her motor vehicle was brought to a halt following the knock‑down, Ms Rose disputed that she must have seen Mr Prime on the roadway well before she reached the street light on the small island verge at the front of his home.
Mr Kingsbury and Ms Rowe
Ms Rowe and Mr Kingsbury were unable to give any evidence relating to the occurrence of the knock‑down.
Ms Rowe gave evidence that Mr Prime had drunk around two or three Corona beers that evening. He may have taken another beer with him to walk the dog. She agreed that Mr Prime left the house to have a cigarette. He always smoked outside and never inside the house.
Mr Kingsbury gave evidence that when he arrived, Ms Rose's stationary car was parked on the left side of the east-bound lane of Preston Point Road, adjacent to the bike lane in front of a tree on the verge of 89 Waddell Road. This is the approximate mid‑point of the unbroken dividing line leading to the median strip and the intersection of Preston Point Road and Waddell Road. This approximately equates Ms Rose's evidence.
However, Ms Rowe gave evidence that Ms Rose's stationary car was further to the east and almost adjacent to the western end of the traffic island dividing west and east-bound traffic on Preston Point Road.
Ms Rowe said that Mr Prime's body ended up on the roadway on the unbroken line almost in line with where Mr Kingsbury and Ms Rose said her motor vehicle was brought to a halt. Mr Kingsbury however, positioned Mr Prime's body a bit further to the west.
The police file
Records from the police investigation were tendered into evidence, including photographs of the east-bound lane around the area of the street light on the small island verge adjacent to the boundary between 287 and 291 Preston Point Road. The photographs show:
1.fluid and debris from a smashed bottle of beer, which includes some broken glass from a Corona stubby; and
2.a stubby holder by the kerb, just to the east of the driveway of 291 Preston Point Road and adjacent to a tree outside that address.
There is also police photographic evidence of the west‑bound lane at the western end of the unbroken dividing line indicating the position of Mr Prime's body after impact. The police found this area to be marked by blood stains. It is 16.2 m west of the street light on the small island verge adjacent to the boundary between 287 and 291 Preston Point Road.
When the police arrived at the scene, they found Ms Rose's motor vehicle on a grass verge outside 89 Waddell Street, 15 m to the east of where Mr Prime ended up after the knock‑down. Ms Rose had moved her motor vehicle from the roadway where she brought it to a halt following the knock‑down.
Ms Rose's motor vehicle was damaged on the front right corner in the area of the right headlights. There was also damage to the windscreen, 'A' pillar, turret and some markings were located on the right passenger side.
The police were unable to identify the point of impact between Mr Prime and Ms Rose's motor vehicle. The police did not observe any tyre scuff marks. However, impact was likely to have occurred west of where the beer bottle landed on the road. This was however, on the basis that Mr Prime was carrying a beer bottle.
The major crash investigation section of the police provided a report, including:
Lighting in the area was poor. Assessment from near the intersection of Fifth Street found that on the southern margins of the carriageway overhanging foliage and trees on the verge created large areas of darkness. Officers with hi‑visibility vests who were standing under the light (where the broken beer bottle was) were difficult to make out and identify.
A drive-through also found that vehicle headlights did not assist greatly in illuminating, from a distance, the dark areas identified along the carriageway.
Information provided was that the pedestrian was wearing dark clothing and was walking in a northerly direction across the carriageway.
The difficulty with this report is that it was received into evidence by consent and without any questioning of the officers concerned.
It is clear from this report that the police believed Mr Prime had been walking in a northerly direction from the southern side of Preston Point Road to the north. They were mistaken in this belief.
In accordance with their mistaken belief, the police assessed the lighting and darkness on the southern margins of the carriageway from near the intersection of Fifth Street, which is approximately 65 m west from the incident scene. Motor vehicle headlights did not assist to illuminate these margins.
The expert evidence
Expert evidence was led from Dr Bruce Corben, a traffic safety consultant and Dr Stephen Chew, a professional mechanical engineer. They each gave evidence relating to the mathematical analysis of stopping distances of motor vehicles at varying pre‑crash speeds. Dr Chew also gave evidence regarding lighting.
Dr Chew observed the police markings showing the location of fluid and debris in the east‑bound laneway. He marked the kerb adjacent to the western extremity of those markings. This kerb marking then became point zero for reference purposes. It is almost directly in front of the street light on the small island verge in front of the boundary between 287 and 291 Preston Point Road.
Dr Chew organised for professional photographs to be taken on 23 May 2017 from the west of point zero, commencing at 90 m and then mainly at 10 m intervals down to 20 m, and then at 5 m and 2 m respectively, looking towards the scene. The photographs were taken at night. There is a male person with Mr Prime's small white dog in the photographs crossing from the north to the south of Preston Point Road.
The visibility of the person and dog taken in the photographs is afforded by reason of the street light to which they were closely positioned. The moon on that occasion was in the same phase as it was on 20 May 2013. There is no evidence to suggest that the street light was anything but constant from 2013 to 2017.
These photographs indicate that it is possible, although difficult, to see the male person with the dog in the photographs at a distance of 90 m to the west of point zero. The dog can be more readily seen by reason of its white colour. At 80 m, the person is more visible and the dog is plainly visible. At 60 m, both the person and the dog are plainly visible and they are increasingly more visible as the photographs were taken closer to the point of impact.
Dr Bruce Corben
Dr Corben gave evidence about perception reaction time (PRT) and the distance travelled by the driver of a motor vehicle whilst perceiving and reacting to a hazardous situation on the roadway ahead. The driver needs to perceive the hazard, assess it, make a decision about appropriate action and take that action being, in a case such as the present, bringing the vehicle to a halt or to swerving around the hazard.
Perception reaction time can vary between drivers.
Dr Corben gave evidence that lower visibility, including night conditions, may increase PRT. So too may heavy traffic conditions.
The determination of PRT is sourced from appropriate literature. It is a science in itself which Dr Corben has not studied.
Dr Corben opined a PRT of 1.2 – 1.5 seconds for Ms Rose by reason that she was young and not affected by alcohol or drugs. There was no suggestion that she was tired. The traffic was light. The fact that it was night time did not preclude this opinion, such that a PRT of 1.5 seconds was reasonable for Ms Rose.
Dr Corben provided a table setting out stopping distances with varying perception reaction times at initial speeds of 50 and 55 km per hour respectively as follows:
Table 1: Distances travelled by a driver while perceiving and reacting to a hazardous situation ahead, at both 55 km/h and 50 km/h, for a range of realistic PRT values
PRT value (seconds
Initial Speed (km/h) Perception-reaction Distance (m) Braking Distance (m) Stopping Distance (m) 1.2 50 17 13.1 30 55 18.3 15.9 34.2 1.5 50 20.8 13.1 33.9 55 22.9 15.9 38.8 2.0 50 27.8 13.1 40.9 55 30.6 15.9 46.5 2.5 50 34.7 13.1 47.8 55 38.2 15.9 54.1 3.0 50 41.7 13.1 54.8 55 45.8 15.9 61.7
Dr Corben gave evidence of the likelihood of a fatal outcome for a pedestrian struck by a motor vehicle as a function of the impact speed in that crash. The survivability of a pedestrian struck by a motor vehicle travelling at over 55 km per hour is quite low. At 45 km per hour or below, the risk of death is below 50%, which is why the urban default speed limit has been reduced to 50 km per hour.
In cross‑examination, Dr Corben was referred to a guide from Austroads, which is an organisation made up of road authorities throughout Australia and New Zealand. Austroads uses three driver reaction time values, being 1.5 seconds, 2.0 seconds and 2.5 seconds to accommodate different situations in traffic. 1.5 seconds may be used in a range of traffic settings, including reduced traffic complexity, low speed and urban areas, although in cross-examination, Dr Corben accepted, from the Austroads guide, that 1.5 seconds should not be used in Western Australia.
Dr Stephen Chew
Dr Chew relied upon Dr Corben's table referred to above. He said the stopping distances could be varied to allow for the upward incline of Preston Point Road. However, in the circumstances of this case, any variation is not of any real consequence. He and Dr Corben worked on the same braking co‑efficient.
Dr Chew referred to a PRT of between 2.0 and 3.0 seconds at night time, for example on a country road at high speed when the only lighting is car illumination or a heavily built up area where a driver might be distracted. He then referred to a low speed urban road without street lighting, such that the PRT will gravitate towards the lower end of the 2.0 second range. Then, in reference to this case, he suggested a PRT of between 1.5 – 2.0 seconds, probably nearer to 2.0 seconds, given the presence of a blue mercury vapour street lamp to illuminate the pedestrian.
Dr Chew prepared further tables on the basis that a pedestrian can be seen at 40, 50 or 60 m by the driver of a motor vehicle and for that driver to then brake (Tables, 2, 3 and 4). He also prepared tables for that driver to attempt to steer around the pedestrian (Tables 5, 6 and 7) as follows:
Table 2: Analysis results for the case where the pedestrian is detectable to the car driver at 40 m west of the pedestrian
Initial Car speed (kph) 50 55 Car speed at collision point for 1.5s reaction time (kph) Car stopped Car stopped Car speed at collision point for 2.0s reaction time (kph) 12 35 Car speed at collision point for 2.5s reaction time (kph) 39 52
Table 3: Analysis results for the case where the pedestrian is detectable to the car driver at 50 m west of the pedestrian
Initial Car speed (kph) 50 55 Car speed at collision point for 1.5s reaction time (kph) Car stopped Car stopped Car speed at collision point for 2.0s reaction time (kph) Car stopped Car stopped Car speed at collision point for 2.5s reaction time (kph) 25 31
Table 4: Analysis results for the case where the pedestrian is detectable to the car driver at 60 m west of the pedestrian
Initial Car speed (kph) 50 55 Car speed at collision point for 1.5s reaction time (kph) Car stopped Car stopped Car speed at collision point for 2.0s reaction time (kph) Car stopped Car stopped Car speed at collision point for 2.5s reaction time (kph) 25 31
Table 5: Analysis results for the case where the pedestrian is recognizable to the car driver at 40 m west of the pedestrian
Initial Car speed (kph) 50 55 Time available for car driver to react by steering for 1.5s reaction time (seconds) 1.4 1.1 Time available for car driver to react by steering for 2.0s reaction time (seconds) 0.9 0.6 Time available for car driver to react by steering for 2.5s reaction time (seconds) 0.4 0.1
Table 6: Analysis results for the case where the pedestrian is recognizable to the car driver at 50 m west of the pedestrian
Initial Car speed (kph) 50 55 Time available for car driver to react by steering for 1.5s reaction time (seconds) 1.7 1.7 Time available for car driver to react by steering for 2.0s reaction time (seconds) 1.2 1.2 Time available for car driver to react by steering for 2.5s reaction time (seconds) 0.7 0.7
Table 7: Analysis results for the case where the pedestrian is recognizable to the car driver at 60 m west of the pedestrian
Initial Car speed (kph) 50 55 Time available for car driver to react by steering for 1.5s reaction time (seconds) 1.7 1.7 Time available for car driver to react by steering for 2.0s reaction time (seconds) 1.2 1.2 Time available for car driver to react by steering for 2.5s reaction time (seconds) 0.7 0.7
Dr Chew went on to say that it is not known where impact between Mr Prime and Ms Rose's motor vehicle actually occurred. It can only be estimated. It could be up to 3 m west of point zero. He could not say whether impact occurred within the east‑bound lane or on the dividing line.
Dr Chew also gave evidence that illumination is measured in terms of lux. The lux illumination from Ms Rose's car was not measured, but from Dr Chew's research on the internet, the car had 17 ‑ 18 lux in order to illuminate a darkly clad person at 26 – 30 m in front of Ms Rose's car. There would be more lux visibility on the northern edge of the west‑bound traffic lane than the centre of the road.
Dr Chew gave evidence that Mr Prime and his dog could have been detectable under the combined illumination of the street light and the car's low beam headlight at 41 – 61 m west of point zero. However, this was an assumption which, if disputed, required the services of a forensic vision expert. There was no such evidence in this trial.
Dr Chew opined that a darkly clad pedestrian could be seen on the negative contrast due to illumination by the street light at 51 – 61 m west of the zero reference point.
Dr Chew also referred to the work of Dewar RF and Olson PL: Human Factors in Traffic Safety, 207 at Table 20.1 page 433, which says that the 50th percentile walking speed of men aged 40 years is 1.5 m per second.
Findings
Ms Rose was the only witness able to give direct evidence of her vehicle crashing into Mr Prime.
The speed at which Ms Rose was driving
Ms Rose left her home in First Street, some four blocks and 550 m away from the scene of the incident. By her own admission, she drove in an easterly direction along Preston Point Road at 55 km per hour in a 50 km per hour speed zone.
Mr Prime's direction of walking
Each evening, Mr Prime walked his dog to a tree on the opposite side of the road on the verge outside 286 Preston Point Road. The shortest possible route thereto is the straight line from the small pedestrian gate of the complex to that tree. To walk in such a straight line leads to Mr Prime crossing the roadway in a diagonal direction, being approximately between south of east. However, as will be seen below at [87], the point of impact is not on that exact diagonal path, but rather, to the south of it and more probably than not, at an unknown point somewhere between point zero and up to 3 m to the west of point zero.
On Ms Rose's evidence, Mr Prime was crossing the road from her left to her right ie, north to south, with his back turned towards her and slightly to the side. There is no reason to not accept this evidence. This is consistent with Mr Prime generally walking across the roadway in a diagonal direction.
Mr Prime's point of entry onto the roadway
There is no direct evidence to determine the exact point of Mr Prime's point of entry onto the roadway. However, it can be inferred that he did so from around the large verge adjacent (to the small pedestrian gate in front of the complex) and the small driveway (between that large verge and the small verge with the street light). This inference arises from:
1.the position of the small pedestrian gate relative to the tree on the opposite side of the road to which he was heading;
2.the position of both the large verge adjacent to that small pedestrian gate and the small driveway relative to the line between the small pedestrian gate and the tree on the opposite side of the road;
3.Ms Rose's evidence of Mr Prime walking diagonally across the road with his back towards her and slightly to the side; and
4.the point of impact determined below at [87].
It matters not that Mr Prime deviated in a loose and not so straight line from the small pedestrian gate to the tree on the opposite side of the road via the point of impact. Possible explanations for this deviation, not inconsistent with the inference, are that Mr Prime's dog led him in that direction or that he deviated off course whilst drinking his Corona beer or that he was reaching for a cigarette and not looking where he was going.
How long was Mr Prime on the road?
Mr C C Rimmer, as defence counsel, referred to Dr Chew's evidence of the 50th percentile of men aged 40 years having a walking speed of 1.56 m per second, such that if Mr Prime were to have walked in a perpendicular direction from the kerb onto the roadway to reach the broken dividing line, being a distance of 5 m, then he would have taken 3.2 seconds to do so.
However, Mr Prime did not walk in a perpendicular direction. He walked diagonally across the road. Even if the exact point from which he entered the road cannot be inferred then, wherever that starting point was, it can be inferred that it was to the west of the street light on the small island verge. Mr Prime therefore walked more than 5 m on the road and, using Mr Rimmer's figures, for more than 3.2 seconds. This does not take into account any time he was under the umbrella of the street light and visible on his large front verge or in the small driveway before crossing the kerb onto the roadway.
Further, it cannot be assumed Mr Prime was walking at 1.5 m per second. Indeed, he was most probably walking more slowly given Ms Rose's evidence that he was standing on the roadway and that she did not recall him walking. This is consistent with him taking longer than 3.2 seconds to reach the centre of the roadway and can be reasonably explained as outlined above at [80].
For these reasons, Mr Prime was more probably than not on the road under the glow of the street light for more than 3.2 seconds and walking at less than 1.56 m per second. It cannot be determined precisely how much longer or how much slower.
The point of impact
The police and Dr Chew were not able to determine the exact point at which Ms Rose's motor vehicle crashed into Mr Prime. Tyre scuff marks were not identified.
Ms Rose said that Mr Prime was standing on the end of the unbroken dividing line separating the western and eastern‑bound traffic along the roadway. However, she must be mistaken about this position on the unbroken dividing line for the reasons that:
1.the police report indicates that, if Mr Prime was holding a beer bottle on impact, then impact must have occurred to the west of the fluid and debris on the roadway;
2.given the evidence from Ms Rowe about the likelihood of Mr Prime drinking and the fact of the fluid and debris, including a broken Corona beer bottle, on the roadway, it is more probable than not that Mr Prime was holding a Corona beer at the time of impact;
3.whilst there is no expert evidence of what might happen to a beer bottle when the person holding it is struck by a motor vehicle, one likely scenario is that it would be dislodged and, in the circumstances, end up being broken on the roadway leaving its contents to spill;
4.the fluid and debris extended eastwards from point zero to the western end of the last broken dividing line on the roadway. It was photographed by the police;
5.Dr Chew's opinion was that impact occurred anywhere up to 3 m to the west of point zero. This is consistent with the police report;
6.Ms Rose's evidence was that when she first saw Mr Prime, the street light was approximately 3 m in front of her at an angle of 45 degrees on the small island verge. Mr Prime was then 2 – 5 m in front of her motor vehicle. She was 'right on top of him'. There is no reason to not accept this evidence; and
7.the beginning of the unbroken dividing line is approximately 20 m to the east of the fluid and debris on the roadway.
From these facts, the likely point of impact, on an west-east axis, was somewhere between to 3 m west of point zero and point zero. On a north‑south axis, the point of impact was on, or close to, the western end of the last broken dividing line before the dividing line became unbroken. This is almost directly in front of point zero and the street light.
Should Ms Rose have seen Mr Prime on the road?
The possibility of pedestrians crossing a reasonably busy road in a built up urban area, such as Preston Point Road at 10 pm on a week night, is reasonably foreseeable and the probability is that a motor vehicle driver, such as Ms Rose, should have seen Mr Prime crossing that road.
A driver must take account of the possibility of inadvertent and negligent conduct on the part of a pedestrian, particularly where any collision could result in serious injury, or worse, to the pedestrian: McLean v Tedman (1984) 155 CLR 306, 311. In the language of s 5B(1) and (2) of the Civil Liability Act, the risk of harm to a pedestrian on the roadway in the present case was foreseeable and not insignificant. It was therefore something which a driver was required to take reasonable steps to avoid.
As Le Miere J said in Alexander v Manly [2004] WASCA 140 [50]:
It is clear that the respondent owed a duty of care to all users of the road. That duty of care was not confined to persons who were careful and sober but extended to all foreseeable users of the road, including bad and inattentive drivers or pedestrians and those whose faculties were impaired either naturally or by reason of the effect of alcohol: March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 per Deane J at 520. Thus, for example, an inattentive driver of a slowly travelling car has been held to be liable for breach of a duty of care to a pedestrian who, dressed in a dark overcoat on a rainy night, sought to cross the light [sic, road] at a 'highly unlikely' spot without any real lookout for oncoming traffic: see Teubner v Humble (1963) 108 CLR 491.
Ms Rose was required to exercise reasonable care in driving her motor vehicle. This required her to take into account other road users who may not always take due care.
In Manley v Alexander (2005) 223 ALR 228; 2005 HCA 79, the High Court majority observed that the driver of the motor vehicle must pay reasonable attention to all that is happening on the roadway that may present a source of danger. The exercise of reasonable care requires the driver to control the speed and direction of his or her motor vehicle in such a way that the driver may know what is happening in the vicinity of that vehicle and have time to take reasonable to steps to react to those events: [11] – [12].
The determination of what, if anything, a reasonable person in the driver's position would have done involves an assessment of what would have been reasonably practicable for the driver to have done. This is not a task undertaken with the benefit of hindsight.
Ms Rose referred to Mr Prime 'standing' on the roadway when she first saw him. She said he had his back to her, to the side, and was moving from her left to her right. She reported this to the police on the night of the incident. She did not recall him walking. She did not see him for long enough.
There is no acceptable evidence of anything having been on the roadway itself to obstruct Ms Rose's vision of a pedestrian, such as Mr Prime. She said that she was concentrating on the roadway given a recent bad experience she had suffered on that roadway.
Ms Rose's evidence of the upward hill and the bonnet of her motor vehicle obscuring her view cannot be accepted by reason of the evidence from topographical lines on a map of the area showing the roadway to be fairly flat. Photographs of the incident scene refute her evidence of a hill. There is only a small upward rise and it cannot be seriously suggested that her motor vehicle's bonnet obscured vision of anything other than the immediate road in front of her and certainly not the entire roadway for many metres ahead of her.
The photographic evidence confirms the presence of trees on either side of Point Preston Road. Many of these trees are of mature years. However, the tree adjacent to Mr Prime's small pedestrian front gate is smaller than most other trees and is positioned more towards the footpath than the roadway. The photographs show its canopy does not cover the roadside front half of that verge. The street light on the small island verge is positioned over the bike lane on the roadway. The canopy of this tree casts a shadow from that street light onto the western end and northern part of the large verge, but not the roadside front half of it. Therefore, the tree would not have cast a shadow over Mr Prime once he walked past it, out of its cover and into the umbrella of the street light, such that he should have been visible to an alert driver whilst he was still on the large verge adjacent of the small pedestrian gate, or on the small driveway, before stepping onto the roadway.
According to Dr Chew, Mr Prime should have been visible from a combination of Ms Rose's car headlights and the street light at a range of 41 ‑ 61 m. However, car lights were not necessary to illuminate Mr Prime because he was visible at all material times under the umbrella of the street light. Had Ms Rose kept a proper lookout, Mr Prime was able to be seen much earlier than she did see him.
The photographic evidence reveals that at 80 m or 90 m distance from the approximate point of impact, a pedestrian in dark clothing is visible on the roadway under the street light, but not plainly visible. However, at 60 m or less, the pedestrian is plainly visible on the roadway under the street light and that person is increasingly so visible in photographs closer to that pedestrian without the need for any illumination from a motor vehicle's headlights.
The photographs provide observable factual evidence, even if a viewer expects to see a pedestrian in those photographs. As a general guide, the photographs provide reliable evidence of the distance at which a driver should perceive and detect a hazard on the road ahead and appreciate that the hazard was a pedestrian, if the driver had been keeping an adequate and proper lookout.
It is difficult to imagine how Mr Prime could have moved to the centre of the road where Ms Rose first saw him without her having seen him before he was at that position. Mr Prime's movement across the roadway should have attracted the attention of Ms Rose if she had been alert to her surroundings.
It can be found, without more and in the absence of any other evidence, that a reasonably prudent driver, aware of her surroundings and keeping a proper lookout, should have seen Mr Prime before he reached the broken dividing line in the centre of the road.
It can also be found that Ms Rose did not see Mr Prime on his front verge or in his small driveway next to the street light on the small island verge in front of the boundary between his house and the house next door. Further, she did not see him move to the kerb, or from the kerb onto the roadway, or on the roadway at all, until he had reached, or was in very close proximity to, the centre of the road. She did not pay reasonable attention to ascertain his presence on the roadway.
Ms Rose's perception reaction time
Ms Rose was not tested to determine her PRT.
Dr Corben's table of perception reaction times is outlined above at [64]. Ms Rose was young (20 years of age) and not affected by drugs, alcohol or tiredness. The traffic was light or even negligible. It was night time, but clear and dry. There was nothing to distract her vision of the roadway. There is no reason why her PRT should not be 1.5 seconds measured, as opined by Dr Corben, from a distance of when she should reasonably have perceived and detected a hazard on the road ahead.
The opinion of Dr Chew as to PRT is not really contrary to Dr Corben's opinion. True it is that he referred to a PRT of between 2.0 and 3.0 seconds at night time, but that was for surrounding circumstances not relevant to this case and then he reduced PRT to 1.5 ‑ 2.0 seconds, and probably nearer to 2.0 seconds, for a low speed urban road with a blue mercury vapour street light in accordance with the subject street light. However, this was still without any reference to Ms Rose's personal circumstances, as factored in by Dr Corben's case specific opinion, which is to be preferred.
Mr Rimmer also made the submission that a PRT of 1.5 seconds is not accepted in Western Australia, as conceded by Dr Corben. However, that concession was with respect to the geometric design of roadways, not to personal PRT's. In other words, roads in Western Australia are designed from the safety point of view of a PRT of 2.0 seconds or higher. It is not the case that drivers in Western Australia can only have a PRT of 2.0 seconds or greater, or more particularly, that they cannot have a PRT of 1.5 seconds.
Speed, PRTs and stopping distances
Ms Rose's motor vehicle was travelling at 55 km per hour, being 15.28 m per second. Accepting for the moment Mr Rimmer's submission that Mr Prime crossed 5 m of the roadway from the kerb in a perpendicular direction to the centre of it in 3.2 seconds, then Ms Rose was 48.89 m west of point zero when Mr Prime entered the roadway.
If Ms Rose observed Mr Prime enter the roadway from 48.89 m west of point zero, then whether Ms Rose been driving at 50 or 55 km per hour and with a PRT of 1.5 seconds, she would have stopped her motor vehicle before impacting Mr Prime. Even if the PRT is extended to 2.0 seconds, impact still would not have occurred.
However, some allowance needs to be made for the estimations of the police and Dr Chew of impact occurring between point zero and up to some 3 m west of point zero. At 50 km per hour and a PRT of 2.0 seconds, Ms Rose would still have stopped before impact, but at 55 km per hour and a PRT of 2.0 seconds, Ms Rose would have only impacted Mr Prime if he was at least 2.39 m west of point zero (48.89 m ‑ 46.50 m = 2.39 m). However, if impact so occurred, then her motor vehicle speed at impact would have been around 31 km per hour, being much slower than her original 55 km per hour and the risk of death reduces considerably once the vehicle speed is reduced below 45 km per hour in accordance with Dr Corben's evidence above at [65].
However, Ms Rose was necessarily further to the west than 48.89 m when Mr Prime first entered the roadway given the finding that he was on the road for longer than 3.2 seconds and walking slower than 1.56 m per second.
Further, these figures do not factor in any allowance for a reasonably alert driver perceiving and detecting Mr Prime on his large verge or in the small driveway prior to his entry onto the roadway.
Dr Corben's Table 1 at page 11 above details stopping distances.
Dr Chew's tables 2, 3 and 4 at Pages 13 and 14 above detail speed at the point of impact. Tables 5, 6 and 7 detail available time to steer around the pedestrian when seen at ranging distances of varying PRT's.
When should Ms Rose have seen Mr Prime?
Mr Prime walked from the kerb, in a diagonal direction across the roadway and reached, or almost reached, the centre dividing line. Although that distance and the time taken to reach that position cannot be measured with certainty, he did so, without Ms Rose seeing him at all until her motor vehicle was within such a short distance at 2 – 5 m from him that she was then unable to take sufficient evasive action to prevent her motor vehicle from crashing into him.
The photographic evidence points to Mr Prime having been visible on the roadway from at least 60 m and closing. Even if not from 60 m, then certainly, he was visible from 50 m and 40 m.
Even if Mr Prime crossed the kerb when Ms Rose was only 40 m from point zero, then at 55 km per hour, she took 2.61 seconds to reach point zero. With a PRT of 1.5 seconds, she should still have stopped her motor vehicle at 38.8 m and not impacted with Mr Prime at all.
In 2.61 seconds on Mr Rimmer's figures, Mr Prime would have walked only 4.07 m across the roadway, such that he could not have reached the 5 m mark, being the centre of the road where Ms Rose said he was when she first saw him.
Ms Rose said
if he was to take another step, he would have crossed over the line.
If Mr Prime had taken that one more step, as suggested by Ms Rose, then he would have crossed over the dividing line into the eastern‑bound traffic lane. However, he did reach, or he almost reached, the centre of the road and so, on Mr Rimmer's figures, Mr Prime must have been on the road for longer than 2.61 seconds. This therefore puts Ms Rose at a distance greater than 40 m from when Mr Prime first crossed the kerb. She should have seen him enter the roadway from that greater distance. She should have stopped at 38.8 m from first detection of a hazard.
Again, some allowance needs to be made for impact between 3 m west of point zero and point zero. Impact occurred in this area. Depending on where impact occurred in this area and the distance at which Ms Rose should have first detected Mr Prime as a hazard on the roadway, her motor vehicle speed at impact would have been far less than 55 km per hour and Mr Prime would probably have survived. However, countering this, some allowance should be made for Mr Prime being visible before he crossed the kerb.
Ms Rose did not see Mr Prime from at least 40 m. She did not see him until she was so close to him at 2 ‑ 5 m that she was not able to then take effective action to avoid crashing her motor vehicle into him. She should have seen him from at least 40 m, if not before.
Summary – Negligence and causation
Mr Rimmer submitted that this is 'a failure to keep a proper lookout case'. The real issue raised by the defence in this case is when, or at what point along the roadway, should Ms Rose have seen Mr Prime?
In order for Ms Rowe and her sons to succeed in their claim, they must establish that Mr Prime was on the roadway for a sufficient length of time such that he was able to have been seen by Ms Rose from such a reasonable distance that she could detect his presence as a pedestrian and take appropriate action, within her PRT, to avoid her motor vehicle crashing into him.
In Proudlove v Burridge [2017] WASCA 6, Martin CJ, in a dissenting judgment, referred to findings by the trial judge relating to a breach of duty of care which a defendant driver of a motor vehicle owed to his passenger by failing to detect, and therefore to respond appropriately to, various warning signs which the driver should have detected if he had been driving with due care attention [8]. The learned Chief Justice went on to say that, in the absence of other evidence, the findings of fact leading to the conclusion of a breach of duty of care would also lead to the conclusion that such breach had caused or materially contributed to the collision, and therefore had caused or materially contributed to the passenger's injuries as a matter of common sense. As a matter of common experience, failing to keep a proper lookout or to pay due care and attention resulting in a failure to identify and respond appropriately to a risk or hazard on the roadway is a frequent cause of motor vehicle collisions. So, in the absence of other evidence in that case, it was reasonable to infer and conclude that the driver's failure to identify and therefore respond to any warning of the hazard with which he was confronted caused, or materially contributed to, the vehicle's collision with a horse and therefore to the passenger's injuries [9].
By her own admission, Ms Rose was exceeding the speed limit by approximately 5 km per hour and she did not see Mr Prime until he was 2 ‑ 5 m in front of her motor vehicle.
First, if Ms Rose had complied with the speed limit over the course of 500 m prior to impact then, she would have reached the point of impact some 3.27 seconds later than she in fact did. This would have enabled Mr Prime to have taken that one step, as Ms Rose put it, into the west‑bound lane and to have escaped impact from her motor vehicle altogether.
Speed above the speed limit is evidence of negligence. However, speed on its own may not be sufficient to determine negligence. Speed may be such a factor if a driver is inattentive to the surrounding circumstances.
However, if it was not possible to see pedestrians entering the roadway at 40 m or even 60 m distance to avoid impact, it was incumbent on Ms Rose to have reduced her motor vehicle speed to at least the speed limit so as to accommodate the kind of hazard she in fact encountered.
Secondly, in the absence of other evidence, Ms Rose should have seen Mr Prime crossing the road prior to being 2 – 5 m distance from him. She should have seen him from at least 40 m and more probably than not, from at least 60 m. If she had seen perceived and detected Mr Prime from within the range of these distances, then at a speed of even 55 km per hour and with a PRT of 1.5 seconds, impact would not have occurred or would have been at a lesser speed, depending on where Mr Prime was positioned between 3 m west of point zero and point zero, if first detected at only 40 m.
Likewise, at 50 km per hour there would not have been impact with a PRT of 2.0 seconds. At 55 km per hour and a PRT of 2.0 seconds, there would have been limited impact at a lower speed, depending on where Mr Prime was positioned between 3 m west of point zero and point zero.
The knock-down scene here was an urban area where pedestrians might reasonably be expected to be present. This is why the speed limit in such areas is now 50 km per hour. In the absence of other evidence or an explanation as to why she did not see Mr Prime, the fact that Ms Rose did not so see him until being 2 – 5 m from him and too close to him to avoid impact resulted in her not being able to take effective evasive action of braking and/or steering so as to avoid impact. In fact, the impact with Ms Rose's motor vehicle occurred to its front right extreme side, thereby suggesting that her steering action around Mr Prime almost succeeded. If she had seen him earlier, impact most probably would not have occurred at all.
By this evidence, Mr Rimmer submitted that there was an explanation for Ms Rose's motor vehicle crashing into Mr Prime without her seeing him until he was at a close distance to her, namely that Mr Prime walked out into the roadway when Ms Rose's motor vehicle was already so close to him that, with a PRT of 3.0 seconds, she did not have adequate time to perceive and detect Mr Prime and take evasive action to avoid impact, as to which Dr Corben's table at page 11 above is instructive because at 55 km per hour, Ms Rose could only bring her motor vehicle to a halt with a stopping distance of 61.7 m. He therefore submitted that impact was unavoidable.
Mr Rimmer sought to overcome this absence of evidence which might satisfy the requirements of Martin CJ in Proudlove by way of hypothetical mathematical calculations. However, mathematical calculations based on possibility rather than evidence do not provide either other evidence for, or an explanation of, Ms Rose's motor vehicle crashing into Mr Prime as being unavoidable and inevitable following her not seeing him until it was too late at 2 – 5 m distance, even if Ms Rose otherwise drove with all due care and attention.
In this case, the calculations above are consistent with the photographs and the application of common sense and experience leading to a finding of a failure by Ms Rose, with a PRT of 1.5 seconds or even 2.0 seconds, to keep a proper lookout, or to pay due care and attention, such that she failed to perceive and detect Mr Prime on a road in a built up urban area and then respond in an appropriate manner.
It is reasonable, in all the circumstances, and in the absence of other evidence or explanation, to conclude that Ms Rose's failure to perceive and detect Mr Prime as a pedestrian sooner than she did and to take steps to avoid her motor vehicle crashing into him, caused or materially contributed to that crash and his death.
Contributory negligence
The principles of contributory negligence are set forth in Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529:
A finding on a question of an apportionment is a finding upon a 'question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds' [8].
…
The making of an apportionment as between a plaintiff and a defendant of their respective shares in their responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris) and of the relative importance of the acts of the parties in causing damage. It is the whole conduct of each negligent party … which must be subjected to comparative examination. (citations omitted)
Podrebersek has been followed in O'Connor v Insurance Commission of Western Australia [2016] WASCA 95 [62] in which Buss JA said as follows:
63Ordinarily, the driver of a motor vehicle has, as a matter of fact, a greater capacity to cause damage than a pedestrian. See Pennington (16); Anikin [46], [48] - [52]; Smith [14]; Ross [46] ‑ [47].
64However, counsel for the appellants' submission in the present case that, as a matter of principle, where a finding is made that the driver of a motor vehicle should have seen a negligent pedestrian, the apportionment between the driver and the pedestrian 'will always be in favour of the pedestrian because a motor vehicle has the capacity to do more damage', should be rejected.
65In Allianz Australia Insurance Ltd v Swainson [2011] QCA 136, Fraser JA (Ann Lyons & Martin JJ agreeing) observed:
All other things being equal, a driver of a car should ordinarily bear the lion's share of the responsibility where the driver's negligence results in injury to a pedestrian whose negligence contributes to the collision, because the driver has a far greater capacity to cause damage than the pedestrian. In this case however all the things were far from equal [31]. (emphasis added)
66In my opinion, the appropriate apportionment in a particular case between a negligent driver and a contributorily negligent pedestrian will depend on the facts and circumstances of the case; in particular, the whole conduct of the driver and the pedestrian in relation to the accident and a comparative examination of each party's conduct, including the relative importance of each party's conduct, in causing the damage. This task involves findings of fact, the evaluation of conduct and the making of a value judgment based on those matters and the circumstances as a whole. The fact that, in a particular case, the pedestrian's conduct, although involving contributory negligence, did not endanger the negligent driver or anyone else is ordinarily a relevant factor to be taken into account in determining the appropriate apportionment. However, the significance of that factor, and the weight to be given to it, will no doubt vary from case to case. See Pennington (16); Smith [13]; Marien v Gardiner [2013] NSWCA 396; (2013) 66 MVR 1 [49].
Subsection 5K of the Civil Liability Act2002 provides as follows:
5K.Standard of contributory negligence
(1)The principles that are applicable in determining whether a person is liable for harm caused by the fault of the person also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2)For that purpose —
(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and
(b)the matter is to be determined on the basis of what that person knew or ought to have known at the time.
The principles of contributory negligence from Pennington v Norris (1956) 96 CLR 10 referred to in Podrebersek continue to apply notwithstanding the enactment of s 5K.
Mr Prime had a duty of self‑preservation to check and make sure it was safe for him to cross the roadway. He was wearing dark clothing. He did not heed the presence of Ms Rose in her motor vehicle with its traffic lights on low beam or hear the engine of her car because if he had, then he would either have waited on the roadside for her to pass, or he would have crossed the roadway with sufficient time and haste to ensure his safe passage. He did not do so. He had his back to the oncoming traffic. He was therefore not keeping a sufficient lookout for his own safety and he too, was negligent in contributing to his death.
Mr Rimmer also submitted that Mr Prime was intoxicated. He sought to invoke s 5L(3) and s 5L(4) of the Civil Liability Act presuming contributory negligence on Mr Prime's part. Section 5L provides as follows:
5L.Presumption if person who suffers harm is intoxicated
(1)This section applies when it is established that the person whose harm is the subject of proceedings for the recovery of damages for that harm was intoxicated at the time of the act or omission that caused the harm.
(2)This section does not apply in a case where the court is satisfied that the intoxication was not self-induced.
(3)If this section applies, it is to be presumed that the person was contributorily negligent unless the plaintiff establishes, on the balance of probabilities, that the person's intoxication did not contribute in any way to the cause of the harm.
(4)In this section —
intoxicated means affected by alcohol or a drug or other substance capable of intoxicating a person to such an extent that the person's capacity to exercise reasonable care and skill is impaired.
The fact of a blood alcohol content of 0.1% or an ethanol reading of 0.12% alone does not establish intoxication. There is no evidence as to whether they record the same or different things. As such, the higher figure, in conflict with the lower figure, cannot be accepted as being more probable than the lower figure.
There was evidence from Dr Corben that pedestrians with blood alcohol readings of 0.07% or higher displayed more risk behaviours than other less intoxicated persons of a study group. They take longer to make decisions and crossed roads with larger unsafe margins than other less intoxicated or not intoxicated members of the study group. It is not known whether or not this is an observation applying to everyone or only to most people in general. Dr Corben is neither a pharmacologist nor a toxicologist.
Expert evidence is required to establish the effect of a blood alcohol content of 0.1% on a pedestrian. On its own, the reading is merely a number. The reading does not establish Mr Prime was intoxicated to such an extent that his capacity as a pedestrian to exercise reasonable care and skill was impaired. There was no evidence of Mr Prime demonstrably displaying any effects from the consumption of alcohol. In general, it is reasonable to conclude that Dr Corben was correct in his evidence about the effect of alcohol on pedestrians. However there is no expert physiological evidence of the effect of beer consumption to a reading of 0.1% upon Mr Prime as a pedestrian.
Intoxication has not been established. A different view could perhaps be taken without more in the case of a driver of a motor vehicle in respect of which it is sufficiently well known that the consumption of alcohol can impair a driver's ability to control a vehicle.
It could be reasonably expected that at 10.00 pm in the evening in a built‑up urban area, there might be pedestrians on a road, such as Preston Point Road, which is a reasonably well used roadway. There was nothing on the roadway to obstruct Ms Rose's vision. Mr Prime was under the umbrella of a street light, visible and moving onto and on the road.
Ms Rose should have seen Mr Prime if she had been keeping a proper lookout and she should have seen him from a distance which would have enabled her to bring her motor vehicle to a halt before the point of impact or if after impact, at least so that impact occurred at a greatly reduced speed. This would have greatly increased Mr Prime's chance of survival. Alternatively, she could have steered around him.
Following Buss JA in O'Connor at [66], it is necessary to look at the whole of the conduct of both Ms Rose and Mr Prime, including the relative importance of their respective conduct in determining the appropriate apportionment. This also involves a finding that Mr Prime's conduct did not endanger Ms Rose as a relevant factor. Her motor vehicle had capacity to do more danger.
In all the circumstances, liability should be apportioned two thirds – one third in favour of Mr Prime for the reasons set out above.
Quantum
It is next appropriate to determine the quantum of the award, which is solely for economic loss.
The pension income of Mr Prime and Ms Rowe
At the date of his death, Mr Prime and Ms Rowe were both in receipt of Centrelink payments as follows:
Mr Prime's disability support pension $609.40 Ms Rowe's carer allowance – adult $115.40 Ms Rowe's carer allowance – child $115.40 Ms Rowe's pension $609.40 Ms Rowe's family tax benefit $355.00 Total: $1,804.78 per fortnight or
$902.39 per week
After Mr Prime's death, Ms Rowe lost her carer's pension for him and the status of her own pension changed. At trial, Ms Rowe received a carer's allowance for her child Joshua who suffers from anaphylaxis, a family allowance and a single person's pension.
By reason of the low quantum of their respective pensions, neither Mr Prime nor Ms Rowe paid any tax thereon. There was however a deduction made from Ms Rowe's pension in the sum of $320 per fortnight for rent to Homeswest.
Mr Prime's trust fund
Mr Prime was in receipt of a $200 fortnightly allowance from the Public Trustee, being a distribution from funds held in trust for him following his successful criminal injuries compensation claim. Upon his death, payment of this allowance was accelerated by way of a lump sum payment of $9,632.66 to Ms Rowe in satisfaction of the balance of the trust fund, after the deduction of Mr Prime's funeral expenses in the sum of $8,493.65.
At issue is whether the lump sum should be credited to any amount payable by Ms Rose. If so, the measure of credit is the value of the accelerated payment, less any return which would have been made upon the investment had there not been the accelerated payment. Further, there should be regard for such part of the allowance that Mr Prime was likely to have spent on Ms Rowe and their two sons in any event.
Here, the sum of money is not large. Had Mr Prime not died, the fund would not have had to pay his funeral expenses. That would have left the fund intact and in a broad brush approach, it is likely to have returned a value on investment which may have exceeded the value of the accelerated payment. There is no evidence that it would have done so. Further, after deduction of funeral expenses, the fund would have been paid out in full in less than one year in any event, such that any value in the accelerated payment is of small consequence.
Had he survived, Mr Prime is likely to have bought himself some clothes from the fund. However, he spent very little on such luxuries for himself. He preferred to spend his money on his family, as Ms Rowe indicated in evidence. She and her sons would most likely have received the benefit of the majority of the compensation award in any event. Any gain by way of the accelerated payment is of such little value that it can be ignored. On the facts of this case, it 'is in truth scarcely a reality': O'Connor v Lloyd [1962] WAR 37, 40.
Mr Prime's personal expenditure
Ms Rowe indicated that Mr Prime's personal fortnightly living expenses included:
•Tobacco $20 - $22
•Cigarette paper $0.50
•Alcohol $12 - $18
•Food $160 - $180
This totals $192.50 - $220.50 per fortnight.
Assessment of loss
Mr Prime was born on 4 July 1971 and he died on 27 May 2013 aged 41 years. His life expectancy was 40.8 years: Australian Torts Reporter vol 1, 29-160.
Contrary to Mr Rimmer's submission that any award should be reduced by reason of the increase in Ms Rowe's pension, s 5(2)(c)(ii) and (v) of the Fatal Accidents Act provide that any increases in Ms Rowe's pension after Mr Prime's death should not be taken into account as follows:
5. …
(2)In assessing damages in an action brought under this Act, there shall not be taken into account —
…;
(c)any sum paid or payable by way of pension under the provisions of —
(ii)the Social Services Consolidation Act 1947‑1953, of the Parliament of the Commonwealth;
…
(v)any other Act for the payment of a pension to the spouse or a de facto partner of the deceased,
or under any Act whether of the Parliament of the Commonwealth or Parliament amending or replacing any of those Acts;
…
It follows that any increase Ms Rowe received in her pension by way of change to a single person's pension upon the death of Mr Prime is not to be taken into account: Radovanovic v Motor Vehicle Insurance Trust [1980] WAR 105, 109 – 110 and 118. In this regard, it is to be noted that what is being compensated is the pecuniary loss from Mr Prime's pension following his death. His family lost the benefit of his pension after making allowance for his personal expenditure.
To determine the proportion of Mr Prime's income spent solely for his own benefit, Mr D I Connor, as counsel for Ms Rowe and the two boys, relied on a publication from Vincents Chartered Accountants entitled 'Personal Consumption Percentages in Australia – Current Tables for 2015'. This document has a foreword by Professor Emeritus Harold Luntz, the author of the well‑known Assessment of Damages for Personal Injury and Death – 4th ed, in which he says:
… Australian courts have been more receptive to the acceptance, as evidence of what the deceased would have spent for the benefit of other members of the family, of statistical tables based on surveys of household expenditure conducted by the Australian Bureau of Statistics. … The ABS now makes available information on expenditure of families in each decile of family income and the expenditure does vary between deciles.
From Vincents table of two parent families (page 2), the estimate of a deceased's personal consumption can be determined in order to calculate the loss of dependency. For a family with an income of $896 gross per week and two children, Mr Prime is predicted to have spent 16% of his income by way of personal consumption. This table is to be published in the next edition of Professor Luntz's text book.
The estimate of Mr Prime's personal expenditure by Ms Rowe is likely to be a very loose figure. It is more likely than not that all family income was expended. In the circumstances, it is appropriate to proceed with the 16% determined by reference to the ABS statistics. On this basis, Mr Prime spent $144.38 per week on himself ($902.39 x 16%).
Given that Mr Prime's weekly income was $304.70 then, after deducting the sum of $144.38 therefrom, his family was able to benefit to the extent of $160.32 from his pension, or 52.61% thereof. This is very close to the 52% dependency of the surviving parent and children referred to by Professor Luntz at Table 9 on page 501 of the 4th ed of his text book. As it has been widely accepted for several years, the figure provided by Professor Luntz should be followed.
Had Mr Prime survived, his pension would have increased over the years as follows:
Date
Weekly Pension Amount
Family loss (52%)
27.05.13
$304.70
$160.32
20.09.13
$311.75
$162.11
01.07.14
$317.65
$165.17
01.01.15
$321.95
$167.41
01.01.16
$322.00
$167.44
20.03.16
$334.60
$173.99
20.09.16
$335.85
$174.64
20.03.17
$334.80
$174.09
Past loss of dependency can therefore be determined to date by reference to the following periods:
Loss
27.05.13 to 19.09.13:
16 weeks x $160.32 =
$2,565.12
20.09.13 to 30.06.14:
41 weeks x $162.11 =
$6,646.51
01.07.14 to 01.01.17:
26 weeks x $165.17 =
$4,294.42
01.01.15 to 31.12.15:
52 weeks x $167.41 =
$8,705.32
01.01.16 to 20.03.16:
11 weeks x $167.44 =
$1,841.84
21.03.16 to 19.09.16:
26 weeks x $173.79 =
$4,523.74
20.09.16 to 19.03.17:
26 weeks x $174.64 =
$4,540.64
20.03.17 to 13.03.18:
51 weeks x $174.09 =
$8,878.59
Plus interest x 6% ÷ 2 =
$41,966.56
$41,966.56 x 6% ÷ 2 =
$1,258.99 per annum
÷ 365 days =
$3.44 per day
x 1,736 days (248 weeks) =
$855.41 per week
$5,987.93
$47,956.03
Accordingly, past loss of dependency, plus interest, totals the sum of $47,956.03.
Future dependency
It is more probable than not that Mr Prime would have remained a pensioner for the remainder of his life and that Ms Rowe and the two children would have been dependent upon his weekly income, being 52% of $334.80 ie, $174.09 as detailed above from 20 March 2017 until Benjamin turns 18 on 15 February 2021. This is 2 years and 11 months from now. Once Benjamin turns 18, he will then no longer have any dependency.
Next, there is a need to calculate the dependency of Ms Rowe and Joshua, from 16 February 2021 until Joshua turns 18 on 28 August 2025, being 4.5 years. It is agreed between the parties that the dependency of the two sons be limited to each of them attaining 18 years of age.
Finally, there is a need to calculate future dependency once both children have turned 18 following which, Ms Rowe will be the sole claimant from August 2025 to the limit of Mr Prime's life expectancy of 40.8 years.
The publication from Vincents does not provide an updated equivalent table of dependency of a surviving parent with or without children as provided by Professor Luntz in the 4th edition of his text book at table 9.1. Professor Luntz makes reference to the percentage dependency of one parent and one child of 43.7%. This is the figure which should be used once Benjamin has turned 18. Further, using Professor Luntz's text book, Ms Rowe is entitled to 31.2% after both sons have turned 18 years of age.
1.
Dependency of Ms Rowe, Benjamin and Justin
13 March 2018 to 15 February 2021
$334.80 x 52% benefit = $174.09 per week
2 years 11 months (multiplier 139.8) = $24,338.62
Apportioned:
Ms Rowe
$12,169.31
Benjamin
$6,084.65
Joshua
$6,084.65
2.
Dependency of Ms Rowe and Joshua
16 February 2021 to 28 August 2025
$334.80 x 43.7% benefit = $146.30 per week
4 years 6 months (multiplier 206.2) = $30,168.56
Reduced to commence in 2 years 11 months
Present day value (multiplier .895) = $27,000.92
Apportioned:
Ms Rowe
$18,000.62
Benjamin
$9,000.30
3.
Dependency of Ms Rowe alone
29 August 2025 to end of life expectancy (2052)
$334.80 x 31.2% benefit = $104.45 per week
27 years (multiplier 709.8) = $74,144.00
Reduced to commence in 6 years 5 months
Present day value (multiplier .685) = $50,788.64
The total of future dependency loss is as follows:
Ms Rowe $12,169.31 $18,000.62 $50,958.57 $80,958.50 Benjamin $6,084.65 Joshua $6,084.65 $9,000.30 $15,084.95
Gratuitous services
It is agreed there has been a loss of gratuitous services which ordinarily would have been provided by Mr Prime. The agreed rate is $25 per hour. The dispute concerns the quantum of services provided by him.
There was no real dispute that Mr Prime prepared a porridge breakfast for his family every day and that he prepared all other food for Ms Rowe to cook. He then cleaned up the dishes after each meal.
Further, Mr Prime removed all washed clothing from the clothesline, folded it and put it away. He was also responsible for all gardening and maintenance services around the house.
In addition to all of this, Mr Prime was very active in the care of his sons and in his participation with them in karate, tee-ball and football, and with their homework.
Overall, Ms Rowe estimated that Mr Prime provided services around the house of 15 hours per week. She was challenged about her estimate that Mr Prime performed two hours of gardening per week and justified her evidence on the basis of Mr Prime being meticulous in the way he attended to matters. Otherwise, there was no challenge to her evidence on his services.
However, some of the duties performed by Mr Prime do not really fit within the category of gratuitous services. Rather, they are more appropriately appreciated as the division of domestic duties within a family in which neither parent was working.
An appropriate allowance is 10 hours per week from Mr Prime's death to February 2017 when Benjamin turned 14, being 3 years and 9 months, and thereafter, 6 hours per week to the present. This will continue until Joshua turns 14 in August 2021, when there should be a reduction to three hours per week.
Past loss of gratuitous services
Past loss of gratuitous services can be calculated as follows:
1. May 2013 to February 2017 when Benjamin turned 14 years of age 3 years 9 months: 10 hours per week for 192 weeks at $25 per hour = $48,000
Interest at 6% per annum for 3 years 9 months $5,400 $53,400 2. February 2017 to 13 March 2018 – Joshua not yet 14 years of age 1 year 2 weeks: 6 hours per week for 54 weeks at $25 per hour $8,100 Interest at 6% per annum for 1 year 2 weeks $252.34 $8,532.34 $61,752.34
Past gratuitous services therefore amount to $61,752.34.
Future loss of gratuitous services
1.
March 2018 to August 2021 when Joshua turns 14 years of age
3 years 5 months: 6 hours per week for 176 weeks at $25 per hour – multiplier 151.3
$22,695
It is agreed that once neither son has a dependency for gratuitous services, then three hours per week for Ms Rowe alone is the appropriate loss at $25 per hour.
Ms Rowe seeks compensation for services for the duration of Mr Prime's life expectancy. However, this claim should be limited to Mr Prime's 75th birthday.
This part of the claim can be calculated as follows:
2.
August 2021 to July 2046 – Mr Prime's 75th birthday
24 years 11 months: 3 hours per week for 1,296 weeks at $25 per hour - multiplier 684.9
$51,367.50
Reduced to commence in 3 years 5 months
Present day value – multiplier .796
$40,888.53
Future loss of gratuitous services therefore amounts to $63,583.63.
Contingencies
Mr Rimmer's written submissions correctly acknowledge that had it not been for the knock‑down, then whatever might have happened to Mr Prime in the future, he still would have continued to receive Centrelink benefits for the remainder of his life. Further, there is no suggestion that life expectancy as set forth in the relevant table did not apply to Mr Prime as at the date of his death.
Apportionment
The only income in the family was from social security payments. Benjamin and Joshua could not have expected that there would be any spare income left over for allocation to them. All past loss for income should be allocated to Ms Rowe.
There is no evidence suggesting how much of Mr Prime's income was spent on each of Benjamin and Joshua. However, Professor Luntz's text book indicates that in determining the table of percentage of dependency as set out above at [167], it was assumed that twice as much is expended on each adult as on each child. Following this, future loss of dependency should be shared as to one half by Ms Rowe and one quarter by each of Benjamin and Joshua during their respective infancies.
As to past gratuitous services, they have all been provided, no doubt by Ms Rowe. She should have the benefit of past services. Future services will also no doubt be provided by her.
The award
The provision for Ms Rowe is therefore:
Past dependency
$47,956.03
Future dependency
$80,958.50
Past gratuitous services
$61,752.34
Future gratuitous services
$63,583.53
Total
$254,250.40
This total figure needs to be reduced by one third to allow for the apportionment of liability. Thus, the final figure for Ms Rowe is $169,500.26.
For Benjamin, future loss of dependency amounts to $6,084.65 or $4,056.43 after apportionment, and for Joshua, this amounts to $15,084.95 or $10,056.63 after apportionment for liability.
There will be a provision for funeral expenses in the sum of $8,493.65, or $5,662.43 after apportionment for liability.
Finally, there should also be an allowance for the cost of administration of the funds constituted by the awards by Benjamin and Joshua. The parties have advised that this information will be provided in due course.
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