February 24, 2012

The Supreme Court this month ruled that pedestrians have every right to stroll on a roadway surface, awarding compensation to a Rockhampton teenager who had been swiped by the wing mirror of a passing van.

Steven Perfect had been hiking in December 2009 with two others along Knutsford St in suburban South Rockhampton – with “one foot in the gutter and one on the kerb” – to a local fishing hole. It was no less than a perfect day.

On-coming to the group was Helene MacDonald – a cleaner heading to her next job – whose van was fitted with extended side mirrors, protruding 30 cms in each direction from the Hiace body. The left side mirror struck Perfect at speed in his left shoulder area, knocking him down and causing injuries to his left shoulder, coccyx, mouth and jaw. The court had little trouble deciding that the “unimpressive, argumentative” MacDonald had been oblivious to the walkers’ proximity and thus, negligent for failing to give a “wider berth”.

“To deliberately drive within 30 cms of a pedestrian in plain view, with no contingency… and at some speed with or without such a mirror, is to take unjustifiable risks”.

Even with MacDonald having “departed substantially from the standard expected of her”, Suncorp – the at fault driver’s CTP insurer – nevertheless asserted Perfect was equally at fault for failing to entirely move off the bitumen  as the van passed by.

Not so said the court. Pedestrians have “every right to walk on the road surface” if they exercise “ordinary care and prudence”.

While it may be of general prudence to completely vacate the carriageway in the path of an oncoming vehicle, this was not necessarily the case and not so at all in this case: It seems to me plain that a boy of not quite 15 does not have the same degree of experience, understanding, judgment and thoughtfulness to be expected of an adult.

This was not a case where the driver had insufficient time to react to a pedestrian’s presence or that Perfect had moved further into the carriageway as the vehicle approached.

The court accepted in relation to damages – as a result of his shoulder injury and coccyx pain from prolonged sitting – that he would be less likely to pursue overtime, his employment reputation would suffer and he would work slower than his able-bodied co-workers with less chance for promotion.

Orthopedist Greg Gillett’s impairment assessment and the occupational evaluation of Helen Coles were sufficient to net Perfect a future earnings deficiency of $100,000, based on a likely $90/week future wage diminution. The total award, $123,813.10. A youngster vindicated finally despite the prevarication of his injurer. Pleasing, if not perfect.

Perfect v MacDonald & Anor [2012] QSC Brisb McMeekin J 10/02/2012

Categories: Personal Injury , Litigation & Law Practice

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