Allianz failed to overturn a $160,000 running down verdict on the grounds the trial judge had engaged in unsupported speculation by relying on her “own experience in life” to conclude that its insured driver had failed to keep a proper lookout for a pedestrian that he struck causing multiple limb and pelvis injuries.
Noting that this was “no more than the use of common sense in drawing inferences from the evidence”, the appeal court refused the Allianz contention that the driver was innocent of negligence. The injured walker had imbibed about eight schooners over the evening and picked up 3 bottles of beer before leaving Wallaby Bob’s in Mudgeeraba at 9pm for a stroll to his home 6km south along Springbrook Road.
About 30 minutes and 2 km into the journey, he was struck by the defendant’s Toyota. He had been on the roadway rather than the footpath – to take advantage of the chance of hitching a ride – but to the left of the fog-line, the painted bright white line that marks the edge of the legally drivable carriageway.
As the Toyota approached, he turned round to his right, inadvertently stepping just across the line and was then hit. The District Court assessed the driver to be most at fault and although compelled under the Civil Liability Act to reduce the damages by 25% for the pedestrian’s intoxication, it assessed the plaintiff a full 40% responsible.
Partly successful on appeal, Allianz increased the plaintiff’s share of liability to 60%, shaving about $50,000 from his $160,000 October 2010 judgment:
It was the plaintiff’s conduct in standing very close to the edge of the left lane a relatively dark area at night which initially created the danger. The first defendant’s only fault was in failing to avoid that danger by keeping a proper lookout and slowing down or deviating. In addition to creating the initial danger the plaintiff also precipitated the collision by stepping onto the roadway.
The appeal was allowed to that extent.