The Supreme Court of Queensland considers whether a pedestrian was negligent after being hit by a motor cycle while crossing the road The Supreme Court of Queensland considers whether a pedestrian was negligent after being hit by a motor cycle while crossing the road

The Supreme Court of Queensland considers whether a pedestrian was negligent after being hit by a motor cycle while crossing the road

8 November 2013 | Compulsory Third Party (CTP)
Tags CTP


McAndrew v AAI Limited [2013] QSC 290

Background

The plaintiff suffered serious injuries when hit by a motor cycle as he walked across Hospital Road (“the road”) in Emerald, Queensland, at about 2.50am on 20 December 2008.

The plaintiff was heading home from the pub in a maxi taxi with some friends. He drove a short distance in the taxi before asking the taxi to stop on the road where he got out. It was shortly after this, when he went to walk to the footpath, that he was struck by the motor cycle. The motor cycle rider died as a result of the accident.

The plaintiff could not recall the accident. The evidence as to what occurred came from an acquaintance who was with him, Mr McDonald, and Ms Shae Boag who was walking along the footpath at the time of the accident.

Liability and quantum were in issue.

The defendant insurer argued that there should be an apportionment of responsibility because the plaintiff:

(a) Alighted from the taxi in an unsafe position on the road surface.
(b) Failed to immediately move to a safe position by stopping to chat to his friend in the front seat of the taxi.
(c) Failed to “heed the presence of the loud revving motor cycle”.
(d) Despite the unimpeded view down the road, failed to see the motor cycle.
(e) Was intoxicated and heavily affected by alcohol.

Liability

The defendant failed to establish contributory negligence on the part of the plaintiff.

Justice McMeekin accepted Ms Boag’s evidence and said that in the absence of evidence that the motor cycle was there to be seen or heard in sufficient time for a reasonable pedestrian to take evasive action, the defendant could not criticise the plaintiff’s conduct. His Honour held that the defendant did not demonstrate that the conduct of the plaintiff fell below the standard of reasonable care expected in reacting to a sudden emergency. According to Ms Boag, the plaintiff jumped back as the motor cycle approached at high speed.

Justice McMeekin also said that it was perfectly safe for the plaintiff to get out of the taxi where he did, given that it was 2.30am on a road in a small provincial town at a time when there was no traffic.

Justice McMeekin was not also persuaded that the plaintiff was intoxicated as the Civil Liability Act 2003 (Qld) defines the term ie “that the person is under the influence of alcohol or a drug to the extent that the person’s capacity to exercise proper care and skill is impaired.”

The defendant couldn’t say how many drinks the plaintiff had consumed. The plaintiff’s evidence was that his usual habit was to have a few beers at home and then a few more beers while out and perhaps a rum and dry.

Quantum

The plaintiff was 33 years old at the time of the accident and 38 years old at the time of the trial. Immediately prior to the accident the plaintiff was in-secure, well paid employment in the mining industry as a coal miner. Despite his extensive injuries, the plaintiff was able to return to work in a different capacity and managed to achieve considerably better than his pre-accident income.

As a result of the accident the plaintiff suffered the following injuries:

(a) Right haemathorax;
(b) Right antero-lateral chest wall haematoma;
(c) Fracture first right rib;
(d) Right serno-clavicular disclocation;
(e) Right sub-clavian artery loss;
(f) Right axillary artery loss;
(g) Right midshaft fracture radius and ulna;
(h) Right brachial plexus injury;
(i) Soft tissue injury anterior tibia;
(j) Abrasion left eyebrow;
(k) Soft tissue injury cervical spine;
(l) Surgical scarring from brachial plexus repair – right axilla and neck; right upper limb; right chest wall; right calf; left calf;
(m) Dental injuries; and
(n) Burns to right fingers.

The CLA applied to the assessment of damages.

The plaintiff was awarded $1,420,209.6. Damages were assessed at $1,576,728.66 and adjusted to reflect the $156,519.06 advanced by the defendant pre-trial.

Pain Suffering and loss of amenities of life $150,800.00 (ISV of 70)
Past economic loss $115,000.00
Interest on past economic loss $10,400.00
Past loss of superannuation benefits $10,350.00
Future economic loss $600,000.00
Future loss of superannuation benefits $67,980.00
Past care & assistance $52,300.00
Future care & assistance $115,320.00
Wilson v McLeay $1,000.00
Future pharmaceutical expenses $30,000.00
Future aids & equipment $10,000.00
Future surgical costs $103,500.00
Future treatment costs $50,000.00
   
Dental treatment $16,700.00
Wrist Braces $30,000.00
Special damages $211,721.73
Interest on special damages $1,656.93
   
Total Damages $1,576,728.66

 

 

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Robert Samut

Robert Samut

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