'Road Side Story': There are two sides to every story, sometimes more – which version prevails?

On 14 August 2010 at about 1:40 am, the plaintiff was walking along Homestead Road travelling in the same direction as traffic when he was struck from behind by a vehicle driven by the defendant and suffered serious injury. Both the plaintiff and the defendant had attended a party before the accident and were intoxicated.

It was very dark given the time of night and the street light not working. The road had no edge line or gutter but was bordered by a gravel verge with one lane of traffic in each direction. While it was accepted that the plaintiff had moved right to avoid the vehicle, (the physical evidence suggesting that he was struck by the front of the vehicle, slightly towards the right hand side), it was disputed whether the plaintiff had been walking on the bitumen surface of the road or on a gravel verge next to the road immediately before the accident. Of note, the plaintiff did not specify in his amended statement of claim whether he was walking on the bitumen surface or on the adjacent gravel verge.

Evidence from a number of witnesses as to where the plaintiff was situated at the time of the accident was heard by the trial judge, including the three occupants in the defendant’s vehicle and the man that had accompanied the plaintiff, all of whom had also attended the party. Another driver (Ms Sandstrom), who had driven past the plaintiff (as well as the defendant), from the opposing direction moments prior to the accident, also gave evidence. There was disagreement as to whether the plaintiff was on the gravel verge or road immediately prior to the accident, and likewise whether the defendant was on the gravel verge or road, or had entered the gravel verge at all.

As to the path of the defendant’s vehicle, Sergeant Neal, who attended the scene approximately one hour after the accident, identified a tyre tread mark on the gravel verge for a distance, which returned to the road and joined with parallel skid marks on the road, with the defendant’s vehicle coming to a stop 47 metres from the end of the skid marks. Of note, the defendant tendered expert evidence from a consulting traffic engineer who found that the defendant’s path was consistent with her moving her vehicle over to the left (and therefore her left wheel entering the gravel verge) after passing Ms Sandstrom’s vehicle from the opposing direction.

None of the particulars of negligence alleged by the plaintiff were accepted by the trial judge. Nevertheless, the trial judge found that the plaintiff was walking along the gravel verge rather than the bitumen surface of the road itself, and that the defendant had left the road when the accident occurred. This finding was critical as it informed the trial judge’s conclusion that the defendant’s breach of duty in leaving the road, thereby giving herself little or no opportunity to avoid colliding with the plaintiff who was walking in darkness along the gravel verge, caused the collision and the injuries sustained by the plaintiff. The trial judge found that even if the defendant had been sober, she had insufficient time to stop to avoid the accident. However, he considered that the defendant’s high alcohol reading was a factor contributing to her driving the vehicle on the gravel verge.

Accordingly, the trial judge determined that the defendant was negligent but that the plaintiff was contributorily negligent to the extent of 40%. In respect of the latter finding, the trial judge was persuaded by the plaintiff having walked in close proximity to the roadway in the same direction as traffic (therefore not having regard for his own safety) and that the plaintiff’s high blood alcohol level affected his vigilance and perception reaction to the vehicle coming behind him, although he did not consider that the plaintiff moving right was a result of his intoxication but rather an emergency response when not having a full appreciation of the position of the defendant’s vehicle.

The plaintiff appealed the finding of contributory negligence, contending that the responsibility was attributable solely to the defendant’s negligence in driving off the road. It was otherwise submitted that a lower level of responsibility to the plaintiff applied. Of note, the plaintiff considered that if the correct position was that the plaintiff was not on the gravel verge but was on the bitumen surface of the road, the case founded on breach of duty could not succeed. In any event, the plaintiff contended that if the defendant was not negligent, his injuries were sustained as the result of a blameless motor accident. This alternative case was not addressed by the trial judge in light of the finding of the defendant’s negligence.

The defendant cross-appealed and challenged the finding that she had breached her duty of care to the plaintiff and that any such breach had caused the plaintiff’s injuries. In particular, she submitted that the trial judge erred in finding that the plaintiff was on the gravel verge rather than the road immediately before the accident and that the defendant’s vehicle left the bitumen surface of the road prior to the accident.

The New South Wales Court of Appeal (Court of Appeal) did not accept that the defendant never left the bitumen surface of the road, accepting the evidence of Sergeant Neal in relation to the tread marks on the gravel corresponding with the skid marks that were observed on the road and therefore were produced by the defendant’s vehicle.

However, Sackville AJA, who gave the leading judgment,² accepted the evidence led by the consulting traffic engineer (in the absence of evidence to the contrary) that the defendant coming into contact with the gravel verge was a reasonable manoeuvre to keep a distance from Ms Sandstrom’s oncoming vehicle rather than being due to her intoxication. His Honour was not alerted to any evidence that suggested that the defendant should have been aware that pedestrians would be walking along the road in the same direction as she was travelling or to any regulation or road rule that prevented her from steering her vehicle slightly off the roadway as a precaution to ensure a safe distance between that vehicle and Ms Sandstrom’s oncoming vehicle.

Further, the evidence informing the trial judge’s conclusion that the plaintiff was on a gravel verge rather than the roadway immediately before the accident was examined and the Court of Appeal determined that the finding was not clearly indicated on that evidence. Further, the Court of Appeal considered that the bulk of evidence did not support such a finding and determined that the defendant’s breach of duty, as found by the trial judge, could similarly not be upheld. The cross-appeal was allowed.

The Court of Appeal was therefore not required to comment on the finding of contributory negligence and the grounds of appeal in relation thereto were accordingly dismissed. Nevertheless, the Court of Appeal determined that the parties were to be given the opportunity to put on submissions in relation to the alternative blameless accident case, of which the outcome remains to be seen.

The Court of Appeal’s decision highlights a judge’s important role as a fact finder and how the determined facts of a case may have a material effect on the outcome. Accordingly, should an insurer consider there to be an error in the facts relied upon by a decision-maker, an appeal may be considered.

This case also demonstrates that intoxication is not always the key criterion in discerning whether there is a breach of duty and insurers should give consideration to the collision dynamics and objective evidence.