Duty and the Drink – Who’s to Blame When Cars Hit Drunk Pedestrians

In March 2023, the Victorian Supreme Court decided a case involving a drunk pedestrian being hit by a car that could influence road accidents that happen in Queensland.

The Facts

On July 14, 2017, at around 7:30 pm, a Victorian man was walking home from the pub when he was hit from behind by a vehicle which failed to avoid him.

The incident occurred on a poorly lit residential street with a speed limit of 60km/hr. The defendant had his headlights on high-beam, and testified that the road was illuminated for approximately 50 meters. The plaintiff was wearing dark clothing and, 3 hours after the incident, his blood alcohol level was registered at 0.228%. It was estimated that he had consumed approximately 16 pots of beer before walking home.

The plaintiff said that he was walking along the side of the bitumen because there was no footpath, but hadn’t seen any headlights or heard the car coming.

The defendant said that the plaintiff was about 3 feet from the edge of the road, “almost in the middle of my lane”. The defendant said that he first observed the plaintiff at approximately 50m away when he “suddenly appeared” on the road. The defendant said he swerved, but ultimately could not avoid the plaintiff.

The Question

The parties agreed that the claim was worth $600,000, so the question before the court was to what extent were the parties to blame.

The Decision

His Honour, Justice Forbes, decided that the plaintiff was 70% to blame for the incident (for likely being further onto the road than he had recounted), and that the defendant was 30% to blame for the incident (for failing to keep a proper lookout and avoid the incident when it would have been reasonable to do so).

The plaintiff was awarded $180,000 in damages, commensurate with a 70% reduction due to contributory negligence.

The Ratio

In reaching his decision, Justice Forbes relied on the following reasoning:

• As to where the plaintiff was on the road, His Honour preferred the recollection of the sober man over the intoxicated one, but could not say how far into the laneway the plaintiff actually was.
• As to the plaintiff “suddenly appearing” in front of the defendant, His Honour doubted that the defendant had only seen the plaintiff 50m in front of him, and instead held that “the plaintiff was visible a very short time after the headlights first illuminated him”. His Honour estimated that this was approximately 70m.
• Flowing from this, because the plaintiff was visible to the defendant from approximately 70m away, the defendant had approximately 3 seconds to identify the hazard, but had not managed to the avoid the plaintiff. By failing to avoid the plaintiff, His Honour found that the defendant had failed to keep a proper lookout on the road ahead of him.
• The reduced speed limit of the residential area indicated that there was a higher incidence of potential hazards than might be found on the open road.

The Takeaways

This decision affirms that drivers of motor vehicles must maintain a proper lookout for pedestrians on the road.

If it is reasonable in the circumstances to assume that a driver had time to brake or swerve to avoid a pedestrian, then they can be found to have failed to keep a proper lookout whilst driving.

Lastly, drivers should be aware that residential areas have reduced speed limits due to the heightened risk of encountering pedestrians.