The children of a man, who was killed when he was struck by a bus while walking along a semi-rural road in the middle of the night, and who successfully sued for damages, have been unsuccessful in their appeal of the primary judge’s finding as to contributory negligence. The Supreme Court of Western Australia Court of Appeal upheld the primary judge’s findings of a deduction of two-thirds on account of the deceased’s contributory negligence.
At approximately 1.30 am on 22 March 2009, Allan O’Connor was walking along Layman Road Geographe near Busselton in Western Australia, on his way home from a wedding, when he was struck and killed by a Nissan bus driven by Wallace McGregor.
The area where the accident occurred is semi-rural, with no footpath on either side of the road and no street lightning. At the time of the accident, Mr O’Connor was wearing dark clothing (save for white shoes) and was intoxicated. His blood alcohol reading at the time of his death was 0.127%.
Mr McGregor admitted that he did not see Mr O’Connor before the collision. Mr O’Connor was walking with his back towards oncoming traffic.
The children of the late Mr O’Connor commenced proceedings in the District Court of Western Australia against Mr McGregor and claimed damages pursuant to the Fatal Accidents Act 1959 (WA).
Her Honour Braddock DCJ found that the collision between Mr O’Connor and the bus was caused by Mr McGregor’s negligence. However, Braddock DCJ found that Mr O’Connor was contributorily negligent in failing to take care for his own safety, and reduced the damages awarded by two-thirds on account of his contributory negligence.
The children appealed the primary judge’s findings as to contributory negligence. They argued that the primary judge erred in apportioning liability two-thirds against Mr O’Connor and one-third against the bus driver, Mr McGregor.
Prior to the hearing of the appeal, an order was made that the Insurance Commission of Western Australia be substituted for Mr McGreggor as the respondent in the appeal.
The court found no error in the primary judge’s findings and dismissed the appeal: O’Connor v Insurance Commission of Western Australia  WASCA 95.
This article was written by the Wolter Kluwer Torts writers and first appeared in the Australian Tort, Personal Injury, Health & Medical Law Tracker dated 23 June 2016.