A pedestrian who suffered a traumatic brain injury after he was hit by a car as he crossed the road while eating a hamburger, and was successful at first instance against the driver of the vehicle, has had his damages award reduced by 50%, with the Supreme Court of the Australian Capital Territory Court of Appeal finding that both the driver and the pedestrian were equally to blame for the collision. The court also found that the effect of s 5R and 5B of the Civil Liability Act 2002 (NSW) is that the approach taken in Pennington v Norris (1956) 96 CLR 10 no longer applies to the assessment of contributory negligence in a collision between a motor vehicle and a pedestrian.
At 6.30 pm on 24 June 2004, Trevor Senton, who was then aged 63 years old, was crossing Kendal Street in Cowra. He was eating a hamburger and walking at a normal pace, when he walked into the path of an oncoming motor vehicle being driven by Francis Steen. As a result of the accident, Mr Senton suffered a severe head injury.
The part of the street where the accident occurred was poorly lit.
Mr Senton commenced proceedings against Mr Steen in the Supreme Court of the Australian Capital Territory, in negligence and claimed damages. Mr Steen admitted negligence, but alleged that Mr Senton was contributorily negligent in failing to keep a proper lookout and take adequate care for his own safety. Mr Senton denied any contributory negligence, and also alleged that the vehicle’s headlights were not illuminated at the time of the collision.
Master Harper conducted a separate hearing as to liability. The Master found that Mr Steen’s headlights were on, and the vehicle was travelling at between 11 km/h and 16 km/h when Mr Senton was struck. The Master found that Mr Senton was walking across the road at a normal pace, eating his hamburger, so that his body was turned and facing slightly away from oncoming traffic. The Master also found that Mr Senton failed to stop at the centre line and look to his left, and that if he had done so he would have seen the approaching headlights of Mr Steen’s vehicle. On that basis, it was found that Mr Senton was contributorily negligent; that he failed to keep a proper lookout and failed to take care for his own safety, which a reasonable man in his position would have taken.
In assessing contributory negligence, the Master applied Pennington v Norris (1956) 96 CLR 10 in the context of assessing both Mr Senton’s and Mr Steen’s departure from the standard of care of a reasonable person, and took into account that the driver is in charge of a motor vehicle capable of causing great damage to others, whereas the pedestrian does not endanger anyone. On that basis, the Master assessed damages in the total sum of $1,323,516 and assessed contributory negligence at 30%.
Mr Steen appealed the Master’s findings on the basis that in assessing contributory negligence, the Master applied s 138 of theMotor Accidents Compensation Act 1999 (NSW) and erred in failing to also apply s 5R of the Civil Liability Act 2002 (NSW) (the CLA), and erred in applying Pennington. Mr Steen also argued that the Master’s reduction of 30% for contributory negligence was manifestly inadequate in the circumstances.
The court found that the effect of s 5R and 5B of the CLA is that the approach taken in Pennington, and taken by the Master at first instance, no longer applies to the assessment of contributory negligence in a collision between a motor vehicle and a pedestrian. It found that the Master erred in applying Pennington and in failing to apply s 5R and 5B of the CLA. The court also found that Mr Senton and Mr Steen were equally responsible for the collision and Mr Senton’s injuries, and assessed contributory negligence at 50%.
Accordingly, the court upheld Mr Steen’s appeal and reduced the damages award by 50% on account of contributory negligence:Steen v Senton by his litigation guardian The Public Advocate of the Australia Capital Territory  ACTCA 57.
This article was written by Jackie Waugh, Wolter Kluwer Torts Editor, and first appeared in the Australian Tort, Personal Injury, Health and Medical Law Tracker dated 12 November 2015