An elderly man who was hit by a car as he attempted to cross the road, and was wearing earphones through which the radio was playing, has had his damages award reduced by 20% on account of contributory negligence. The Supreme Court of the Australian Capital Territory found that had the man been taking reasonable care by ensuring that his hearing was not impeded by the earphones, he would have become aware of the car and would have been able to take some evasive action.
On 20 September 2011, John Pangello, a 63-year-old man, went on his regular evening walk. While walking along Wanganeen Avenue, he was required to cross over Jandamarra Street, which intersected Wanganeen Avenue. Mr Pangello was wearing earphones through which the radio was playing. He had almost completed his crossing when he was struck by a four-wheel drive being driven by Timothy Smith. Mr Pangello was knocked to the ground, striking his face and the left-hand side of his body. Police and ambulance attended the scene and Mr Pangello was taken to Canberra Hospital where he remained for six weeks.
Mr Pangello commenced proceedings in the Supreme Court of the Australian Capital Territory against Mr Smith in negligence and claimed damages.
Breach of duty was admitted by Mr Smith, but the extent of the damages as well as contributory negligence were disputed.
The matter proceeded to hearing before his Honour Mossop AsJ. His Honour found that Mr Smith had stopped his vehicle to permit another vehicle to pass, before turning right into Jandamarra Street, made a right-hand turn and hit Mr Pangello at a relatively low speed knocking him down onto the footpath.
His Honour noted that a pedestrian crossing a road at night even in a relatively low traffic suburban area is obliged to take reasonable care for the person’s own safety. Mossop AsJ found that Mr Pangello neither saw nor heard Mr Smith’s vehicle prior to the accident, and that had Mr Pangello been taking reasonable care either by looking at his surroundings or by ensuring that his hearing was not impeded by earphones, then it is likely he would have become aware of the presence of the vehicle and would have been able to take evasive action.
Mossop AsJ found that Mr Smith was substantially responsible and assessed Mr Pangello’s contributory negligence at 20%:Pangello v Smith and Insurance Australia Limited trading as NRMA Insurance  ACTSC 313.
This article was written by Jackie Waugh, Wolters Kluwer Torts editor at first appeared in the Australian Tort, Personal Injury, Health and Medical Law Tracker dated 22 October 2015.