VANBEE v Atkinson
[2008] WADC 94
•2 JUNE 2008
VANBEE -v- ATKINSON [2008] WADC 94
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WADC 94 | |
| Case No: | CIV:1463/2006 | 27 MAY 2008 | |
| Coram: | WISBEY DCJ | 2/06/08 | |
| BROOME | |||
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Defendant negligent Plaintiff's contribution assessed at 40 per cent | ||
| PDF Version |
| Parties: | VALERIE VANBEE BRIAN PATRICK ATKINSON |
Catchwords: | Negligence Highway Collision of car with pedestrian who walked in front of car Contributory negligence |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
BRIAN PATRICK ATKINSON
Defendant
Catchwords:
Negligence - Highway - Collision of car with pedestrian who walked in front of car - Contributory negligence
Legislation:
Nil
Result:
Defendant negligent
Plaintiff's contribution assessed at 40 per cent
(Page 2)
Representation:
Counsel:
Plaintiff : Mr J G Staude
Defendant : Ms P A Moore
Solicitors:
Plaintiff : Patrick J Cannon Coburn & Associates
Defendant : Lavan Legal
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 WISBEY DCJ: The plaintiff, a pedestrian, sustained injuries when she was struck by a motor vehicle driven by the defendant whilst she was crossing Broome Road, Broome on 22 December 2000. She alleges that the accident was caused by the defendant's manner of driving, the alleged negligence being particularised in par 3 of the statement of claim. Although there are five particulars pleaded, essentially it is asserted that the defendant was travelling at an excessive speed in the circumstances, and failed to keep a proper lookout. The defendant denies negligence and states that the accident was caused or contributed to by the negligence of the plaintiff in failing to keep any or proper lookout and walking out onto Broome Road and into the path of the defendant's vehicle when she was under the influence of alcohol. The court is required to determine liability.
2 The plaintiff an aboriginal woman born on 27 May 1965 was, at the relevant time (approximately 9 pm), walking in a southerly direction into town on the gravel verge of Broome Road. She acknowledged that she had been drinking alcohol, but had no recollection of the circumstances leading up to the occurrence of the accident.
3 An agreed book of trial documents comprising a statement of a witness, Kerry Lynne Gibbs, dated 23 December 2000; a statement of the defendant dated 22 December 2000; the defendant's answers to interrogatories which appear to have been sworn on 18 February 2008; and photographs of the immediate aftermath of the accident and of the locality, was received in evidence (Exhibit 1).
4 Ms Gibbs stated that at approximately 8.20/8.40 pm she was driving out of town in a northerly direction on Broome Road and as she turned left into Sanderling Drive had to stop to allow a female aboriginal to cross in front of her. The female was walking south on the western side of Broome Road, and appeared to be under the influence of alcohol and oblivious to her surroundings. Ten minutes later Ms Gibbs was driving back into town and passed the accident scene observing a car with its headlights facing her on her right hand side, and a man crouching over a prostrate aboriginal person in the middle of the road.
5 In his statement, the defendant, a self-employed builder then 52 years of age, stated that at the material time he was driving his 1987 Holden Commodore sedan with his wife as a passenger north on Broome Road at about 50 kilometres per hour when "All of a sudden I have noticed a person walking out in the path of our car. This person was walking on the road and walking towards town. This person came from my
(Page 4)
- left. When I first saw this person they were only about 6 or 8 metres in front of the car. I didn't have time to do anything except brake. This person hit the front of my car, near the middle".
6 In his answers to interrogatories the defendant stated that the plaintiff was the only pedestrian he observed whilst driving on Broome Road, and when first seen she was approximately 50 metres to the front of his vehicle walking in a southerly direction on the western gravel shoulder of Broome Road. "She stepped or stumbled onto the road into the path of my car immediately before the accident." That account appears to be inconsistent with his statement given shortly after the accident indicating that he first saw the plaintiff when she was 6 or 8 metres in front of his car.
7 In evidence at trial the defendant stated that Broome Road consisted of a north and a south bound lane with a gravel verge, but without a footpath. His recollection was that the speed limit was 60 kilometres per hour and he was travelling at 50 kilometres per hour in a northerly direction some 200 metres north of the town. It was dark and the car headlights were illuminated. He stated that pedestrians usually walked on the eastern side of Broome Road. He observed the plaintiff when she was on the gravel verge about 50 metres to the front of his vehicle and as his car approached she stepped straight out in front of it and collision was unavoidable. He explained that the comment in his police statement that he first saw the plaintiff when she was 6 or 8 metres in front of the car, was intended to indicate that was her distance from the car when she stepped from the shoulder of the road onto the road surface. He stated that he was not watching the plaintiff at all times as it was necessary for him to observe other traffic. As soon as the plaintiff stepped onto the road the defendant braked but his car collided with her and she fell to the right hand side of the vehicle in the position shown in the photographs.
8 In cross-examination the defendant agreed that he had not mentioned in his statement having seen the plaintiff when she was 50 metres to the front of his vehicle, stating that he was traumatised when he made the statement. He was aware that pedestrians had been killed on Broome Road in the past, but stated that it was unusual for pedestrians to be walking on the western side of the road. He denied that he was not exercising due care. He did not alter speed upon observing the plaintiff, nor did he move to the right because of possible interference with oncoming traffic. He stated that when first seen the plaintiff was just off the bitumen surface on the gravel shoulder which was about one and a half metres wide. He considered the plaintiff would have had to traverse a
(Page 5)
- distance of 4 to 5 metres from her position on the shoulder to where she was on the road surface at the point of collision.
Findings of fact
9 Although the defendant impressed me as a truthful and conscientious witness, I conclude that his present recollection has been affected by the passage of time and the phenomenon of reconstruction. I am satisfied that the statement he provided to the police shortly after the accident, albeit given at a time when he was undoubtedly in shock, is more likely to accurately reflect the circumstances leading up to the accident. I am satisfied that the defendant did not observe the plaintiff until she was a short distance from the front of his car and moving into or across its path. It was then too late to take evasive action. The defendant was negligent in failing to keep a proper lookout such as would have enabled him to observe the plaintiff in sufficient time to take proper steps to alter the speed and/or direction of his car so as to avoid impact with her.
10 I am also satisfied that the plaintiff was guilty of negligence which contributed to the accident in that she was intoxicated and consequently failed to keep any or proper lookout and walked or stumbled into the path of the defendant's car. I assess the plaintiff's contribution to the accident at 40 per cent.
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