Walker v Smith - [2022] VSC 188

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

CIVIL CIRCUIT LIST - BENDIGO

S ECI 2021 00017

Peter Walker	Plaintiff
v
David Smith	Defendant

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JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATE OF HEARING:	17, 18, 21 March 2022
DATE OF JUDGMENT:	14 April 2022
CASE MAY BE CITED AS:	Walker v Smith
MEDIUM NEUTRAL CITATION:	[2022] VSC 188

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TORTS – Negligence – Contributory negligence – Motor vehicle accident – Inebriated pedestrian struck by driver at night – View of the location of the accident – Quantum of damages agreed by parties – Whether defendant driver was negligent – Whether plaintiff’s actions gave rise to contributory negligence – Defendant driver failed to keep a proper lookout – Plaintiff walking on road amounted to contributory negligence – Apportionment of liability – Warren v Coombes [1979] HCA 9; 142 CLR 531 – Manley v Alexander [2005] HCA 79; 80 ALJR 413; 223 ALR 228 – Simmonds-Thatcher v Kamari [2021] VSCA 133.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Mighell QC Mr M. Fogarty	Slater & Gordon Ltd
For the Defendant	Mr A. Moulds QC Mr R. Kumar	Solicitors for the Transport Accident Commission

HER HONOUR:

Peter Walker was a pedestrian struck by a vehicle driven by David Smith in Station St, Rushworth on 14 July 2017. Mr Walker sues the driver for damages alleging negligence in the driving of the vehicle. The defendant denies negligence and raises the issue of contributory negligence. The circumstances said to give rise to the negligence and the contributory negligence alleged are detailed further below. Understanding the evidence was assisted by a view of the location of the accident on the second day of trial.

On the first day of trial the parties agreed the quantum of damages leaving only the issue of liability of the defendant and, if relevant, then that of the plaintiff. As to quantum, at the time of the motor vehicle accident, Mr Walker was 36 years old having been born on 23 July 1980. He is presently 41 years. He is a single man who grew up in Rushworth. He attended school to year eleven. He obtained a Certificate 1 in Engineering and then completed an apprenticeship. He has worked at JNR Engineering since about 2001. He was employed fulltime and did a variety of tasks including welding, yard work loading and unloading trucks. He held this employment for about sixteen years until the time of the accident. He has not returned to work since.

In the accident, he suffered a left ankle fracture and a right shoulder and arm injury. He was taken by ambulance to Goulburn Valley Hospital where he underwent an open reduction and internal fixation on his ankle. He had further significant surgery to the left ankle in March 2018 and again undergoing an arthroscopy in February 2019. His shoulder and arm injury received limited conservative treatment. His ongoing injuries have led to psychiatric consequences. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Walker v Smith

Details

AGLC: Walker v Smith [2022] VSC 188
Case: [2022] VSC 188
Decision Date: 14 April 2022

CaseChat Overview and Summary

In Walker v Smith, the plaintiff, Mr Walker, brought an action against the defendant, Mr Smith, for damages arising from a motor vehicle accident that occurred at night. Mr Walker, who was visibly intoxicated, was struck by Mr Smith’s vehicle while walking on a road. The dispute centred on whether Mr Smith was negligent in failing to avoid the accident and whether Mr Walker’s actions contributed to the incident. The case was heard in the County Court of Victoria.

The court had to determine whether Mr Smith breached his duty of care by failing to keep a proper lookout, and if so, whether this breach caused the accident. Additionally, the court needed to assess whether Mr Walker’s decision to walk along the road, while intoxicated, constituted contributory negligence. If contributory negligence was found, the court would apportion liability between the parties.

The court found that Mr Smith was negligent for not maintaining a proper lookout, which is a fundamental duty of care for drivers. The court also determined that Mr Walker’s decision to walk along the road, while under the influence of alcohol, contributed to the accident, thus constituting contributory negligence. The court applied principles from Warren v Coombes, Manley v Alexander, and Simmonds-Thatcher v Kamari to apportion the liability between the parties. The court concluded that Mr Smith was 75% liable and Mr Walker 25% liable for the damages.

The court ordered that Mr Smith pay Mr Walker $75,000 out of the total agreed damages of $100,000, reflecting the apportionment of liability.

Orders