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A pedestrian knocked down by a passing ute at night on a dark country road has defeated a CTP insurer’s argument that he should have been walking on the opposite side of the road with the flashlight on his mobile phone illuminated to warn motorists of his presence.
Chris Eden – a native of Dysart in central Queensland’s coal region- was making his way north by foot just after dusk along the western edge of the Dysart Bypass Road from his home to a friend’s metal fabrication workshop.
About 200 m from his destination, he spotted approaching lights that he soon identified as a pair of bicycles riding south.All of a sudden he heard the screech of tyres from behind and in an instant was struck by a Toyota Hilux and knocked to the ground.
In shock and trying to figure out what had just happened he stood up to rush to the aid of one of the cyclists who appeared to have a serious leg injury.
Fast forward from the April 2020 accident scene to the Supreme Court in Rockhampton for the determination of Chris’ injury compensation claim against Ray Jamieson, the driver of the Hilux and his CTP insurer Allianz.
The latter asked Justice Graeme Crow to rule that Eden was walking in the middle of the northbound carriageway as its insured driver contended rather than close to the shoulder as Eden had sworn.
Also in contest was the distance at which Mr Jamieson ought to have been able to see the person on foot in his headlights and the consequences of Eden’s breach of road rules required to be observed by pedestrians.
Engineer Mr Blom concluded from the skid marks measured at the scene that Jamieson had braked heavily and steered towards the right in an effort to avoid the collision with the pedestrian.
Reflected light from Mr Jamieson’s headlights would have illuminated the walker due to his light blue shorts, a highly visible white decal on the back of his shirt, and a highly visible white plastic bag.
Jamieson – who was 82 years of age at the time of the accident and was hard of hearing – swore he did not see the pedestrian upon the roadway until he was about 10 metres away.
Jamieson must though only have seen him – thought the judge, having regard to the measured skid marks and a standard 2 second reaction time – at 35 to 40m metres away.
“It is highly likely that he was walking on the road 50 cm from the edge of the of the carriageway” when he was struck by the passenger side mirror of the skidding Hilux and was “observable at a distance of approximately 80 metres”.
But what of the pedestrian’s breach of s 238 of the Transport Operations (Road Use Management – Road Rules) Regulations that requires among other things pedestrians must walk facing approaching traffic moving in the opposite direction and on the side of the road clear of any traffic coming from behind.
Justice Crow readily excused this transgression, accepting Eden’s evidence that he would have been walking on the opposite side but for the steep drop-off – that fell away to a table drain below – at the edge of the opposite shoulder.
He agreed it was reasonable for him to have stayed on the left side for that reason and for him to be about 50 cm inside the edge of the carriageway, given his caution not to enter the knee-high grass on the left shoulder that might have been inhabited by snakes and was unstable.
The judge also rejected the insurer’s argument that Eden – a 28 yr-old electrician – should have alerted drivers of his presence by engaging the flashlight on his mobile phone.
“A pedestrian has every right to walk on the road surface if he wishes. In doing so he must exercise ordinary care and prudence but he does not do so at his peril.”
Considered by the judge to be “a determined, well-adjusted, hardworking young man” Eden’s general damages were assessed at $38,000. Past loss of wages came in at $145,000 and he was allowed $720,000 for loss of future income and employment benefits out of total damages of almost $990,000.
Eden v Jamieson & Anor [2023] QSC 240 Crow J, 1 November 2023
Categories: Pedestrian accident