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Written by Peter Carter

May 19, 2022

What share of liability should an inebriated pedestrian bear for his injuries if he is struck by an inattentive driver while walking home at night on a poorly lit country road?

That was the question that confronted a court called on to adjudicate the injuries received by 36-yr-old welder, Peter Walker in July 2017.

After he had finished work at about 1:00 pm near Shepparton in Victoria, he returned home to Rushworth to have “a few drinks through the afternoon” before going to the Rushworth Hotel for happy hour at 5:30 pm.

Leaving there at about 8.30 pm he took a well-travelled route along Station Street – keeping to the edge of the bitumen on the left of the road – to get to his home.

Suddenly “clipped” on his right shoulder by the bull bar of David Smith’s Hilux, he was “swung around” and came down, fracturing his left ankle.

An ambulance eventually arrived to transport Walker to Goulburn Valley Hospital where he underwent an open reduction and internal fixation. Further surgery to the left ankle followed in March 2018 and an arthroscopy in February 2019.

His shoulder and arm received limited conservative treatment and his ongoing condition included psychiatric consequences. He has not worked since.

Before the inevitable pedestrian injury compensation trial that Smith’s liability insurer contested in the Supreme Court in Melbourne, the parties agreed Walker’s damages at $600k clear of benefits already paid.

Walker swore he did not regard himself as having been intoxicated despite having consumed 16 pots of beer over the course of the afternoon and evening.

He rejected the suggestion he had been unsteady on his feet asserting ‘I was walking quite fine’. Ambulance records reveal he had been observed to be ‘calm/quiet’ and his speech had been ‘clear and continuous’.

His level of intoxication (recorded as an estimate of 16 beers) led however to a reduced dosage of pain relief from the ambulance crew and blood work conducted at the hospital revealed an equivalent BAC of 0.228%.

Smith’s account was that he had only seen Walker when he was about 50 m distant, notwithstanding that he had had his headlight set to high beam.

“He was not walking, rather he was just standing there,” Smith testified from the witness stand.

Justice Jacinta Forbes observed that Smith had been travelling at the relevant speed limit of 60km per hour with no other or competing distraction on a road with “ineffective lighting”.

She concluded that because Walker had only ‘suddenly appeared’ before him – ie Smith had only seen him at the last possible moment – that had been just a fraction of a second before impact.

Smith had though, lapsed denying himself the opportunity to slow and swerve.

“He ought to have remained alert in order to keep a proper lookout given the potential for injury to himself and other road users that may result from any such lapses,” Her Honour ruled.

“While I accept that the actual presence of a pedestrian was unexpected, the reduction in speed limit due to the built-up nature of the town through which the road was passing did indicate that there was a higher incidence of potential hazards that might be found on the open road,” Justice Forbes observed.

That said, she went on to apportion 70% of the responsibility for the accident to the pedestrian!

Walker’s conduct “in my mind is substantial and deliberate behaviour, of greater comparative significance than the lapse in attention that has led to the driver failing to keep a proper lookout”.

That apportionment does not appear to be consistent with Her Honour’s findings.

That said, on the basis of her Honour’s apportionment, the damages awarded to Walker was $180k.

Walker v Smith – [2022] VSC 188 Forbes J, 14 April 2022

Categories: Pedestrian accident

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