BETWEEN : TELISHA LEE O'CONNOR by his next friend COLIN O'CONNOR

LEVI DAVID O'CONNOR by his next friend COLIN O'CONNOR

Fatal Accidents Act 1959 - Motor vehicle accident - Negligence - Causation - Standard of care - Pedestrian - Contributory negligence - Civil Liability Act 2002 s 5 L(3) - Blood alcohol 0.127% - Visibility of deceased - Avoidability - Expert evidence - Failure to call expert

Civil Liability Act 2002 s 5B, s 5C, s 5D, s 5K, s 5L, s 5N

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Knight v Maclean [2002] NSWCA 314

Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492

Purcell v Watson (1979) 26 ALR 235

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

1 In the early hours of the morning of 22 March 2009, Alan William O'Connor (the deceased) was walking along Layman Road Geographe near Busselton. Whilst the deceased was walking along the road he was struck from behind by a Nissan school bus driven by the defendant, Wallace Nathaniel McGregor. As a result of that collision he died. The deceased was the father of two children, Telisha Lee O'Connor born on 6 May 1998 and Levi David O'Connor, born on 27 December 2002, (the plaintiff children). This action is brought by Colin O'Connor, the stepfather of the deceased, on behalf of the two children under the Fatal Accidents Act 1959.

2 The deceased had been a guest at a wedding at the Abbey Beach Resort in Busselton on the night of Saturday 21 March 2009. He had organised a lift home with his sister when the event finished. This was sometime after 10.00 pm. As a result of some argument, he did not travel home with his sister. From the time that he parted company with his sister until the time of the accident, the whereabouts of the deceased are not known. Nevertheless, on the Sunday morning at about 1.25 am, he was walking west along Layman Road.

3 At the time of his death the deceased had a blood alcohol reading of 0.127%. He was wearing dark clothing save for a white tie and shoes. The defendant admits that he did not see the deceased prior to the accident. The road is a standard two lane road with a dotted white line down the middle. The edges of the road are marked with solid white lines at the edge of the bitumen. The area is semi-rural, on the north side there is a new residential development and on the south side there are fields and some scrub. There is no footpath on either side of the road. There was no street lighting.

4 The Nissan school bus driven by the defendant was in good condition and had six lights at the front, four headlights and two side lights. At the time of the accident they were on full beam. The bus struck the deceased on its left hand side. The deceased came to rest in a ditch on the left hand side of the road. There were seven passengers on the bus at the time.

5 The location of the impact was approximately 100 m west of the intersection of Layman Road with Willmott Street, Geographe. It was a dark night without a moon at that time. The deceased was walking with his back towards the oncoming traffic. It appears that during the time he was walking along the road he was having intermittent mobile phone conversations with his girlfriend, Ms Cresswell. There was a slight left hand curve in the road around the point of the impact.

6 The parties have agreed the quantum of damages at $550,000, subject to the court's approval pursuant to O 70 of the Rules of the Supreme Court 1971. The parties have not agreed on liability or the apportionment of liability.

7 On behalf of the plaintiff children it is claimed that the accident and the deceased's death were caused by the negligent driving of the defendant, particularised as:

(b) failing to brake, swerve, steer or manoeuvre or otherwise drive in a manner to avoid the accident;

(e) failure to exercise extra caution in the absence of street or moonlight.

8 The defendant denies that the accident or the death were caused by negligent driving and denies that he breached his duty of care at all.

9 The defendant claims that the deceased was negligent in a manner which may be summarised as wearing dark clothing in an unlit area, walking with his back to the traffic on a road when it was unsafe to do so, not keeping a proper lookout and being under the influence of alcohol. It is claimed that he ought to have known that he placed himself at risk by that behaviour. Furthermore, it is pleaded that he is presumed to have been negligent by having a blood alcohol content of 0.127%, in accordance with s 5L of the Civil Liability Act 2002 (CLA). It is alleged that he was walking with his back towards the traffic and talking on his mobile phone, thus not keeping a proper lookout. It is alleged that by his clothing, the way he was walking on the road, the type of the road, under the influence of alcohol, talking on the phone and not looking out for himself he failed to exercise due care for his own safety. Further, in the alternative, the defendant says if there is any breach of its duty there is contribution by reason of those matters to the damage.

10 From the above, it can be seen that there is very little in dispute on the facts. The real issues at the trial for decision were:

(2) If the defendant had seen the plaintiff, would he have been able to avoid the accident?

(3) If the answer to questions (1) and (2) is affirmative, to what extent did the deceased's conduct contribute to the accident.

11 The first question involves consideration of where the deceased was walking and the distance between the deceased and the bus, the lighting from the bus, the contrast between the deceased and the road, the curve in the road and whether there were any obstructions.

12 The second question involves consideration of the actual distance between him and the bus when he ought to have been seen, the speed the bus was travelling, the time available to react and what, if any evasive action, could have been taken to avoid the impact. There is no issue as to the time and place of the accident or the fact the deceased sustained fatal injuries as a result of it. There is no dispute that the deceased was walking with his back to the direction of traffic, that he was wearing dark clothing, and that his blood alcohol level was 0.127%.

13 The defendant admits that Layman Road was a country road, with no street lighting, on a dark and moonless night, that the bus had six lights including four headlights at the front and that at no stage did the defendant see the deceased prior to impact. The defendant admits that that the deceased was walking the road with his back towards the traffic along this rural road.

14 Stewart Anthony Ipsen, a farmer of Pemberton, was called. He gave evidence that on the morning of 22 March 2009, he was a passenger on the bus that was being driven along Layman Road. He witnessed the accident from the bus and provided a statement to the police at that date. In evidence, he confirmed that that statement was accurate as to his memory at the time. He said that he was sitting halfway back next to his wife, but he was unsure on what side. He identified his statement. He said that he could not now really remember much, apart from the fact he remembered seeing a pedestrian hit the window. His statement was admitted pursuant to s 79(3) of the Evidence Act 1906, in which he said:

Now I was talking to Greg Lee who was sitting in the seat in front me.

While talking to Greg I looked up and through the front window and saw a person walking along the road. I think they were about one metre in from the gravel verge.

I couldn't tell if it was male or a female person as they were only a couple of metres in front of the bus.

As soon as I had seen this person they have been struck by the bus hitting the front passenger side.

15 Under cross-examination, he admitted he had been drinking that evening from about 5.00 pm till midnight. He had had a good time and drank a lot of beer. He said that he could not now remember seeing the pedestrian prior to him hitting the window, but he could at the time of the statement. He agreed that the accident happened in a matter of seconds, that he had no idea what direction the pedestrian came from. After the accident they all got off the bus and tried to assist the pedestrian. He confirmed that the deceased was lying in a ditch which was a significant dip about two metres or so from the road. His signed statement is dated 1 April 2009. I accept that there is good reason for his difficulty in recalling events now in 2014, and that the statement would be close to a contemporaneous record of his observations. He confirmed its contents on oath. There are, of course, better ways of leading evidence in this situation. But I accept his testimony.

16 The plaintiff tendered an affidavit of Mr Stewart Douglas Budd, the vehicle investigator, which confirmed that there were no defects detected when he examined the Nissan school bus on 31 March 2009.

17 Answers to five interrogatories given by the defendant were tendered, to the effect that the bus lights were on full beam before and at the time of the accident, that the time of impact was 1.25 pm, 100 m from the nearest intersection, that the defendant was travelling at 50 - 60 km per hour, contact was on the left hand front side of the bus which was, prior to that, undamaged. The defendant was driving left of the centre of the road, closer to centre than the verge and he did not see the deceased.

18 Both the plaintiff children and defendant tendered photographs of the road from various positions, the bus and the deceased.

19 Professor Stephen Dain was called. Two reports by him were tendered, dated 3 January 2014 and 14 August 2014.

20 Professor Dain is from the New South Wales School of Optometry and Vision Science. He has been employed by the University of New South Wales full time from 1976 - 2006. He is qualified as an optometrist, but he has been responsible for teaching occupational and environmental optometry, which deals with the interaction of eyes and vision in the environment from 1978 - 2006. He is widely published. He founded the Optics and Radiometry Laboratory (ORLAB), which provides for testing and calibration and product development for the ophthalmic industries and advises on the issues of colour and light for industry generally. ORLAB is accredited by the National Association of Testing Authorities, which includes tests on road related matters, including automotive signals and headlights. He is a member of the Fellowship of the Illuminating Engineering Societies of Australia and New Zealand and has expertise in photometry, which is a measurement of light and lighting. He is also a member of the Fellowship of Metrology Society of Australia, this is the science of measurement. His fellowship was granted on the basis of his knowledge and contributions to the field of optics and radiometry, including the measurement of light. His core expertise is in applied vision, the occupational aspects of vision and the measurement of light and colour. He has experience in the application of this knowledge to road and rail accidents. I accept Professor Dain's expertise in the matters he testified about in this trial.

21 He was briefed with the pleadings, reports by Dr Steven Chew, photographs, the crash report, aerial photographs of Layman Road, materials from the Bureau of Meteorology, the Western Australian police materials, the coroner's report and a photograph of the deceased at the time.

22 He attended Layman Road, Geographe on 4 November 2013 to view the scene both during the day and during the hours of darkness. In evidence he confirmed that everything on such a vehicle as the school bus is governed by the Australian Design Rules, a number of which cover the lighting of vehicles, which are tested and certified both here and in the United Kingdom.

23 He described Layman Road itself as having no street lights. He noted a street light on Willmott Street, at the north-east corner of the intersection with Layman Road, which was too far away from the accident site to provide significant light. The accident site he understood to be 100 m west of the intersection. He referred to Dr Chew's photographs. He described the land to the left as being a broad strip of grass trees and bushes and beyond that fenced paddocks. He said that there was a nature strip to the right hand side with some trees and bushes and behind that, residential streets. He said that the only useful lighting, in this circumstance, at night, is from the headlights of vehicles - specifically the bus in this incident. He said that oncoming headlights may assist or impede the detection of somebody in the roadway, however he was briefed on the basis that there were no oncoming vehicles.

24 He explained that the detection of objects in a roadway depends upon the luminance of the object and its background. He explained that this means that a person in the roadway would be seen at a long distance against the background of the roadside, small trees and the walls and the fences to the rear of residences. This background, he said, is some distance further away than any object in the roadway. As the viewpoint of the driver approaches the object, the view would have been of the deceased against the roadway. The deceased would be illuminated directly (by the headlights) while the roadway was illuminated obliquely. Therefore, despite the roadway and the deceased's clothing being relatively dark there is still contrast available that would assist the visibility of the deceased.

25 Professor Dain had been asked to comment upon Dr Chew's report. He stated that the issues of sighting distance and headlight throw are within his expertise. He commented upon reaction times and stopping distances, to the effect that they would be relevant to a situation where the deceased had been seen but his understanding was that he had not been seen at all. He criticised various aspects of Dr Chew's report. The point he made was that in assessing visibility the important measure is contrast rather than illuminance alone (which must have been what Dr Chew was referencing). Contrast is the ratio of luminance of the object to the luminance of the background, so the illuminance of the object to be detected needs to be supplemented with the illuminance of the background and the reflectances of both. Illuminance can be measured in lux.

26 He referred to the requirement in the Australian Standards in relation to the illuminance of headlights. He doubted that the photographic process faithfully represents the brightness of headlamps. He referred to the Australian Standards governing the brightness of lights.

27 He went on to refer to the factors affecting pedestrian visibility at night with only lighting from headlamps. There are many factors which he lists in his first report. He confirmed in evidence that this is not an exact science. He commented upon the photograph of the deceased, that there was very low reflectance from his clothing and that the light coloured tie and shoes were very small objects to aid detection at a significant distance. However, he elaborated that because of the angles there was significantly more reflectance from the deceased than from the roadway, particularly as the vehicle approached. Furthermore, there were other features which would aid detection such as movement, the movement of lighter shoes and hands and heads.

28 He expressed the view that it would never be possible to establish with any certainty actual visibility distances for a given set of relatively poorly defined circumstances. He went on to refer to studies of pedestrian and other objects' visibility. In his report he stated that the common factor in the studies is that the mean visibility distances for dark coloured objects under high beam illumination is of the order of 100 m or more. In evidence, in answer to the specific questions, he said that from the published papers dark coloured objects in the roadway are seen at a mean distance of around 100 m and that the absolute worst case is a visibility distance of around 60 m. He pointed out that those studies were carried out with a single pair of headlights, whereas the probability was that a bus with two pairs of high beam headlights would have given significantly higher light levels, up to 40% and a greater visibility distance. He said that, given the clear conditions and the absence of oncoming traffic or other conflicting light on an almost straight road his view was that it was reasonable to conclude that the visibility distance would be, at worst, closer to 100 m and at best it could have been as great as 150 m, as shown in some of the published papers.

29 He was asked to provide his opinion on what the driver should or might have been able to see, if he had been keeping a proper lookout. He said that the driver had an unobstructed view of the accident location, at least from Willmott Street (100 m) although the impact site was to the left of dead ahead direction. He assumed that the deceased was at the road margin, as a worst case. He said that the oval distribution of high beam headlights meant that there would not be much difference between that scenario and a metre in from the edge. He concluded that the driver should have been able to see the deceased at a distance of, at the very least, 60 m. He went on to say that he could find no lighting or vision reason why the driver did not see the deceased at some stage of the approach and certainly at distances shorter than 60 m. He said that the deceased would have become increasingly more visible in the headlights of the bus.

30 When questioned about reaction times, he stated that visual ones were within his experience and expertise. He said there were three stages:

(1) formation on the retina and creation of a contrast sent to the brain;

(2) the brain then interprets and decides what to do;

He said that reaction time of one second is within the bounds of possibility. For the simplest task 0.25 of a second is possible, over 0.5 of a second for a more complex task and that 1 - 1½ seconds is typical in these circumstances.

31 He was cross-examined on his precise field of expertise. He confirmed that braking distances and coefficients of friction etc, were outside his expertise. He said that in the area of vision science, the processing of vision is exactly what he deals with and he was entirely competent in that regard. He confirmed that he was not asked to examine the bus and said after five years there would have been no point. He said that he had not conducted any test measurements in relation to the bus lights. He added that he had knowledge of normally working headlights but confirmed that he relied on papers and research in relation to his opinions.

32 In relation to the curve in the road, he was referred to Chew's photographs. He accepted that curvature reduces light. He said that the precise diminution would depend upon the exact alignment of the headlights, but at a distance it is very small, because there is a horizontal oval shape on high beam. When asked about the difference, if the object was off the road, he commented that the intensity would go down, but the contrast of the lighter background would make a difference. He emphasised that biological motion is a powerful means of visual detection, which is why reflectors are often worn on arms and legs. He said that there would be a substantial amount of light reaching shoes with high beam lights. He confirmed that some of the experiments covered (obscured) shoes and hands. He was referred to a paper by a Professor Muttart concerning the times for people to pick up objects under particular conditions. He said his estimate of distance was based upon all the papers and conditions, he accepted it was not an exact science, and had concluded a distance of 60 - 100 m on balance. When it was put to him that it was almost impossible to have seen the deceased (because of the bend) he responded that he did not pay attention to the curvature, because the displacement made it 'neither here nor there'. He did not accept that it was beyond normal circumstances. He drove the road, with headlights, himself as a reality check.

33 The defendant, due to ill-health did not attend in person at trial and his witness statement was tendered in evidence, by consent.

34 Wallace Nathaniel McGregor, was born on 3 February 1944 and therefore was 65 at the time of the accident. He had held an ordinary driver's licence since he was 17 and has various other driving qualifications. His driving history was set out in the statement and it is clear that he had considerable and varied driving experience, including buses, and had never lost his licence.

35 On 21 March 2009, he was engaged to drive wedding guests to and from a wedding function at Broadwater Farm in Busselton. Between driving the guests to the function and picking them up he went home, had dinner and slept for a time. He describes the night as being a fine, crisp evening with not much moon. Late in the evening he picked up the passengers and delivered them to various locations in the Busselton area, until he found himself travelling in a westerly direction on Layman Road in Geographe. He estimated his speed was between 50 - 60 km per hour.

36 He was aware there were a few roundabouts along the road. There was no street lighting provided on Layman Road and he put his headlights on high beam. He drove through the last roundabout at the intersection of Lanyard Boulevard and Layman Road. He said he was well within the speed limit of 70 km per hour. He did not increase his speed, particularly because he knew he would have to reduce it to 50 km per hour further up the road. He said that he was familiar with the route, as he had driven it many times as bus driver. He said that as he pulled away (presumably from the roundabout) he looked at his speedo and noticed that it was doing 50 - 60 km and eased off.

37 He said that he then approached a gentle curving bend on the left hand side of the road, that there were shrubs around the height of the bus on the left hand side. He was familiar with this piece of road. He said that he was not directly near the side of the road, more towards the middle of the road, because he was mindful of the risk of objects or stray animals on the road. He knew there were cattle grazing in paddocks on the left hand side and that it was bush area. He said that he then noticed in his peripheral vision a small flicker of light on the left hand side. Immediately afterwards, he heard a very loud bang. At that time he was looking straight ahead. He stopped the bus, without undue braking because of the passengers.

38 He describes that it was very dark in the area with no illumination from the street lights or moon. His headlights were on high beam, but he did not have spotlights. He said that prior to the bang, he did not see any pedestrians on the side of the road or walking on the road. He did not expect any pedestrian traffic on the road. After stopping the bus and pulling over, he noticed a crack on the windscreen which was too high for an animal. One of the male passengers identified that he had struck a person. He dialled 000. First aid was then rendered to the person by the passengers, whilst he placed cones on the road behind his bus. He waited for an ambulance to arrive, which it did, and the police arrived five minutes later. He spoke to a constable at the time, she breath tested him and it was negative.

39 Ms Leola Cresswell was called. She was a friend of the deceased. On that night she had attended a different function. During the evening she was in contact with the deceased by mobile phone, on some 10 occasions. At around midnight when she spoke to him he was upset, having had a 'fight with his father' and been kicked out of his sister's car. He was lost and agitated, she advised him to go and sleep on the beach: she was worried. She said she last spoke to him around 1.30 am when he said he was 'OK' and walking back to Mandurah.

40 Professor David Joyce was called and his report tendered. His qualifications as a pharmacologist and toxicologist were not challenged. His report was tendered without objection, save for his final conclusion as to the contribution of alcohol to the accident. He had been briefed on the circumstances of the accident.

41 Professor Joyce gave general evidence on intoxication. The manifestation of alcohol intoxication depended upon the person's tolerance to alcohol. His opinion was, however, that a blood alcohol concentration of 0.127% is always accompanied by an impairment of motor skills and by a significant disturbance of judgment both in the physical sense (judgments of time, distance, speed etc,) and a cognitive sense (misjudgments of risk, social circumstances, appropriateness of behaviour etc,). He confirmed that at 0.127% these faculties are lost by practically everybody and the physical losses include an ability to understand where things will be a few moments later. In a person not accustomed to alcohol an intake of 0.127% blood alcohol causes recognisable intoxication. In his report, he said that muscular incoordination is expected but staggering should not be. Speech is generally slow but not usually slurred, activities may be carried out carelessly and there is a loss of critical judgment. People do not become confused at this level. Under normal conditions and storage a blood alcohol level of 0.127% should not change much between the time of death and analysis.

42 Generally, he said that alcohol impairs driver and pedestrian safety through impairment of judgment and false confidence, impaired physical tracking and delayed reaction time. Research indicates that alcohol intoxication increases the risk of pedestrian injury and death substantially. Research indicates that tests on reaction times show that they are impaired from a very low alcohol concentration of around 0.035%, at around 0.07% this alcohol level causes materially important deterioration on common tests and in real life these impairments translate to slower initiation of protective responses.

43 He concluded that the deceased's faculties were impaired in a manner that would put him at increased risk of injury. He explained in evidence that cognitive function is required: to be safe you need to be aware. To be protected you need competent perception and good vision, hearing and level of attention. All of these matters are affected by alcohol. The next ability to be considered is the ability to do sensible things to appreciate that some circumstances are risky and to take measures to keep themselves safe. Professor Joyce was not cross-examined.

44 A report from Perth Observatory for the night of the accident was tendered, which confirmed that on 22 March 2009 a crescent moon rose at 01.55 WAST and natural lighting would be minimal.

45 Constable Potts' accident report confirmed that the road was dry and it was very dark when she arrived. The road was marked by Constable Britton with the position of the bus in orange spray paint. Photographs were taken at 3.00 am. She described the road as being in good condition with a gentle left hand bend as the road continues west. There was no moonlight, no street lights and no footpath. She said there was no other traffic at the time. As a result of the impact the deceased had landed approximately 20 m from the bus in a ditch, which lies between the road and fenced off swamp land.

46 The coroner's report was adduced confirming the cause of death was chest and abdominal injuries, the deceased having a raised blood alcohol level of 0.127%. Cannabis was also detected.

48 Neither counsel addressed submissions on the photographs in any detail. Counsel for the defendant conceded in closing that distances shown on Dr Chew's report were wrong, and both counsel otherwise referred to them only as illustrative of the curvature of the road.

49 The plaintiffs' photographs appear to be those taken by the police on the morning of the accident, showing the orange markings on the road, the general views in both directions and the intersection at Willmott Street. A police car is seen parked in number 5, on about the bend. There are photos of the bus in the dark in situ, showing damage on its left front corner just below the window. There are also later photos taken of the bus in daylight. Photo 16 shows the deceased at the wedding dressed all in black save for his shoes and tie, which were white.

50 Dr Chew's photos, tendered by consent, show views of the road with measurements which in my view cannot be relied upon, absent any evidence to confirm what they signify. There are aerial photos of the scene which clearly illustrate the extremely shallow nature of the curve in the road. Otherwise, no firm conclusions can be drawn from images taken looking along the road without evidence to confirm where exactly they were taken from and the focal length of the lens used to capture the images.

51 In relation to the curvature of the road, I accept Professor Dain's evidence that it was negligible, which is confirmed by the aerial images and Police Officer Potts' description.

52 Division 2 and div 3 of the CLA deal with the general principles concerning duty of care, causation and onus of proof relevant to liability for harm caused by the fault of the person and it is not necessary to repeat them in these reasons.

53 The defendant was required to exercise reasonable care in driving his bus. The exercise of reasonable care requires a driver to take into account that other road users will not always take due care: Purcell v Watson (1979) 26 ALR 235, 240; Knight v Maclean [2002] NSWCA 314 [44]. The High Court pointed out in Manley v Alexander [2005] HCA 79; (2005) 223 ALR 228 [11] and [12] that a driver must pay reasonable attention to all that is happening on and near a roadway that may present a source of danger. The exercise of reasonable care require the driver to control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.

54 However, it is clear that the exercise of reasonable care does not require a driver to drive in such a way as to be in a position at all times to anticipate anything at all that might occur or to be in a position to reduce the speed of the vehicle to a level which will avoid any risk of collision: Knight v Maclean [68].

(1) A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless -

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and

(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) -

(a) the probability that the harm would occur if care were not taken;

(c) the burden of taking precautions to avoid the risk of harm;

(d) the social utility of the activity that creates the risk of harm.

(1) A determination that the fault of a person (the tortfeasor) caused particular harm comprises the following elements -

(a) that the fault was a necessary condition of the occurrence of the harm (factual causation); and

(b) that it is appropriate for the scope of the tortfeasor's liability to extend to the harm so caused (scope of liability).

57 Section 5D CLA provides in determining liability for damages for harm caused by the fault of a person, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

(1) This section applies when it is established that the person whose harm is the subject of proceedings for the recovery of damages for that harm was intoxicated at the time of the act or omission that caused the harm.

(2) This section does not apply in a case where the court is satisfied that the intoxication was not self-induced.

(3) If this section applies, it is to be presumed that the person was contributorily negligent unless the plaintiff establishes, on the balance of probabilities, that the person's intoxication did not contribute in any way to the cause of the harm.

(4) In this section -

intoxicated means affected by alcohol or a drug or other substance capable of intoxicating a person to such an extent that the person's capacity to exercise reasonable care and skill is impaired.

59 The plaintiff children's case was that although the full circumstances of the events would never be known, the deceased was hit by a bus whilst walking along Layman Road at about 100 m from Willmott Street. The submission was that the admitted facts excluded the proposition that the plaintiff ran from the ditch into the path of the bus. The circumstances were that the defendant did not see the plaintiff when the plaintiff was there to be seen. The headlights on the bus were on full beam and were not defective. The submission therefore was that this was an egregious breach of duty; a complete failure to see the plaintiff prior to impact. Therefore a breach of duty of care in not keeping a proper lookout was established. Counsel did not rely on speed or other alleged dereliction of duty in driving.

60 Counsel for the plaintiff children further submitted that it was not necessary for the defendant to stop to avoid the accident; it would have been enough to take some evasive action. He relied upon the evidence of the defendant, of Ipsen, and Professor Dain. He countered potential criticisms of the professor's evidence, by emphasising the fact that Professor Dain had driven the road both in daylight and after dark and was in a position to express the views he had expressed. He had the relevant expertise in vision and light, illuminance and the properties of vehicle headlights. Counsel accepted that there would be some contributory negligence, in the circumstances, but that causation was made out and the defendant could have avoided the accident in the time available.

61 On the other hand, the defendant's case was put on the basis that the plaintiff children's case was flawed, because there was no evidence of the location of the deceased prior to the impact. The defendant's counsel criticised the evidence of Ipsen as being unreliable, due to his intoxication and limited recollection, coupled with the fact of his limited observation. The defendant's counsel criticised Professor Dain in not having conducted his own testing or measurements. He alleged that Professor Dain failed to consider the curvature of the road. The defendant described the plaintiff as being distracted, drunk in dark clothing on a dark road, who could be seen only 30 or 40 m away, and said it was unclear where exactly he was on the road. He referred to reaction times as being in the order of 1 - 1½ seconds and argued that it was not proved that the deceased was visible or where on the road the deceased was. He submitted that the children plaintiffs had to prove that there was time for evasive action.

62 Dr Steven Chew was listed as an expert witness of the defendant in the papers for the judge, and the book of defendant's expert reports shows two reports by him dated 27 March 2014 and 11 April 2012. It is abundantly clear that until the eve of the trial, it was the position that he was going to be relied upon by the defendant. He is listed in the defendant's schedule of witnesses for trial. This did not occur. I have had no regard to the reports of Dr Chew, although they were available in the books provided.

63 Dr Chew is a chartered engineer and ergonomist well known as an expert witness in this jurisdiction. His area of expertise is significantly different from that of Professor Dain. It is clear that the plaintiff children's case was prepared on the basis that Dr Chew would be called by the defendant.

64 It is true that the evidence called by a party in an adversarial system is entirely at the discretion of that party. The defendant relied in closing upon the onus of proof requiring the plaintiff children to show that the deceased was visible and in the roadway and whether there was time to take evasive action.

65 The court is left without the evidence of Dr Chew, who had apparently conducted measurements and tests at the scene.

66 The defendant tendered the WA Police crash report. In that document the location is described as 'on Layman Road 100 m west of Willmott Street'. Constable Potts also describes the location, in the same terms. I have no difficulty in concluding that the site of the accident was 100 m from the intersection between Layman Road and Willmott Street.

67 No explanation was offered for the failure to call Dr Chew by the defendant, save that it was suggested that the plaintiffs had that option also. The fact that Dr Chew had prepared two reports, and Professor Dain had been instructed to comment and respond to them, indicates clearly that there was some issue or issues upon which they differed and until very close to trial the defendant considered Dr Chew's evidence material to its case.

68 It was not suggested that I should consider the application of Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, in this situation and rightly so, as the plaintiffs bear the burden of proof on the issues of negligence and causation.

69 However, even in an adversarial system such a late departure from the proposed case will not, I hope become a usual tactic in these cases, where suitably qualified experts are few in number in this jurisdiction and can be difficult to secure as expert witnesses at trial.

70 The court must determine what a reasonable person would do in response to a relevant risk, which in turn requires a consideration of the magnitude of the risk, the degree of probability of its occurrence in combination with other conflicting responsibilities and the difficulty or inconvenience attached to taking evasive or alleviating action. See Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 47 - 48.

71 The benefit of hindsight is not the yardstick by which a standard of reasonable care should be judged. But for the fact that the defendant did not see the deceased before impact at all, the defendant was otherwise driving in an appropriate and careful manner on Layman Road. From his own statement it is clear that he was familiar with the road, the conditions were good, he drove with high beam headlights, and he was not exceeding the speed limit. He was mindful of the risk that there could be objects or stray animals on the side of the road, as he was aware that there were cattle grazing in the paddocks on the left hand side. Whilst the likelihood of pedestrians might have been small there was no suggestion that his manner of driving was inappropriate or too fast in the circumstances. He was looking straight ahead. Notwithstanding the otherwise careful manner of his driving, the defendant did not see the deceased and it is my finding that the deceased was there to be seen. That much is obvious from the fact that the deceased was struck by the bus, in circumstances where the bus was travelling more towards the centre of the road than the verge. I accept Professor Dain's evidence as to the ability to see a dark figure at 60 - 100 m in headlights along this road. It is impossible to conclude anything other than the fact that the defendant was not keeping a proper lookout, from the admitted fact that he failed to see the deceased at any time before impact.

72 The deceased was walking along the road. This fact is asserted by the defendant in the defendant's pleading of particulars of negligence of the deceased, in that it is alleged he walked with his back to the traffic on an unlit rural roadway, in circumstances where it was clearly unsafe to do, walked with his back towards oncoming traffic in dark clothing, etc, (par 5 of the defence). The defendant's written opening submissions asserted a number of facts that were undisputed, including the fact that the deceased was walking along a country rural road with his back towards oncoming traffic. This conduct of the deceased is further supported, albeit to a limited extent, by the observation of Mr Ipsen that he looked up through the front window and 'saw a person walking along the road, I think they were about 1 m from the gravel verge'. Further, the evidence called from Ms Cresswell, on behalf of the defendant, was to the effect that when she last spoke with the deceased he said everything was okay and he was walking back home to Mandurah. I accept that this latter hearsay statement carries very little weight, but there is no dispute on it.

73 In my view, this evidence and the defendant's concession excludes any reasonable scenario that the accident was caused by the deceased running out into the path of the vehicle. That is fanciful and unsupported by any evidence. Accordingly, I find that the defendant was negligent in his manner of driving in that he failed to keep a proper lookout.

74 The question of causation is more difficult. Could the defendant have avoided collision with the deceased if he had been properly looking?

75 The answer to this question depends upon the distance at which the deceased would have become visible, the speed at which the defendant was travelling, and a driver's reaction time.

76 It was common ground that the only useful lighting at the location at the time was from the headlights of the bus. I accept the evidence of Professor Dain that the visibility distance would have been, at worst, closer to 100 m than distances suggested by Dr Chew. Dr Chew's evidence was not led, but Professor Dain's report was couched in mostly terms of response to that report.

77 Professor Dain referred to many of the published papers and expressed the view in evidence that the worst case for visibility distance was 60 m, but that the studies were carried out with a single pair of headlights. This bus had two pairs of headlights on high beam. Professor Dain said that the greater visibility would be up to 40%. He considered that the driver would have had an unobstructed view of the accident location from Willmott Street, even though the impact site was slightly to the left of dead ahead. He considered the distribution of high beam headlights and the contrast between the deceased and the roadway.

78 The issue of the curvature of the road was addressed by Professor Dain in his report where he described the situation on Layman Road. He referred to a satellite image of the vicinity of the accident (figure 2, page 5, exhibit 4). He went on to say:

While the road does curve to the left, the trees are well back from the road edge and there is an unobstructed view for a distance well beyond the accident site, the road edges are well delineated by the white line and the bitumen/grass area.

79 I find that Professor Dain was well qualified to express these views. Given the passage of time he could not conduct viable tests with the bus and he was not asked to do so. His views are expressed conservatively and in the knowledge gained from site inspection. I accept that visibility was over the 'worst' case 60 m and on balance of probabilities closer to 100 m.

80 The defendant said he was travelling at 50 - 60 km per hour as he came around the last roundabout, prior to the accident location. He then said that he 'eased off'. His estimate of speed was taken specifically from looking at his speedometer at that roundabout section. I accept that his speed would have therefore been about 50 km per hour. As to the distance lit by the beams of his headlights, he describes a rough 'guesstimate' of the distance of 30 - 40 m. That figure cannot stand, in my view, in the face of the expert opinion of Professor Dain in relation to visibility, contrast and illuminance.

81 I have already found that the evidence establishes the location of the impact to be approximately 100 m west of Willmott Street.

82 From these facts certain mathematical calculations can be simply made:

(2) at 50 km per hour a distance of 60 m is therefore covered in 4.3 seconds;

(3) at 50 km per hour a distance of 100 m is covered in 7.35 seconds.

83 Professor Dain accepted a range of 1 - 1½ seconds as typical reaction times then be made by subtracting the range of times from the times calculated above:

(1) at 60 m there is between 2.8 and 3.3 seconds to take action; or

(2) at 100 m there is between 5.85 and 6.35 seconds.

Therefore, the mean time available to act was between approximately 3 and 6 seconds, on the basis, as I have found, of a speed of 50 km per hour.

84 One does not need expert evidence to know that a few seconds are all the time that a driver needs and in reality may often only have, to react to a potential emergency situation. Two to three seconds is, applying common sense and general experience in my view, sufficient time in which to take some evasive action. For example, to swerve with minimal slowing of the vehicle. Heavy braking would not be required to move towards the right hand side of the road and thereby avoid a collision with the deceased in this instance. There were no other vehicles on the road at that time according to all the available information. Had the defendant seen the deceased at the time he became visible in the headlights at conservatively 60 m, I find that urgent evasive action would have been able to avoid impact. In failing to see the deceased the defendant lost the opportunity to take emergency evasive action.

85 Accordingly, I find that the negligence of the defendant was a necessary condition for the occurrence of the impact which caused the harm that led to the death of the deceased as required by s 5C(1)(a) CLA. There is no question of any remoteness or policy as to whether this should be sufficient to found liability, in these circumstances. Accordingly, the accident and the deceased's death were caused by the negligent driving of the defendant albeit not exclusively by that driving.

86 Counsel for the plaintiff children conceded that there would be some contributory negligence pursuant to s 4(1) of the Law Reform (Contributory Negligence Tortfeasors Contribution) Act 1947. Quite apart from the fact of the deceased's intoxication, in regard to which the defendant relied upon s 5L of the CLA, it was pleaded that the deceased failed to take reasonable care for his own safety and was negligent (as set out above). The standard of care is the standard set out in the CLA s 5B. It is the standard of a reasonable person, in the position of the person who is hurt, on the basis of what the person knew or ought to have known at the time.

87 The deceased clearly would have known that he was wearing dark clothing, walking on a dark country road at night, unlit, with his back to the oncoming traffic. In my view, that the deceased was walking on the left hand side is a significant factor in this case. Had he walked on the right hand side of this two lane carriageway, he would not have been struck by the defendant. His walking in that position on the road was aggravated considerably by the colour of his clothing and the absence of any form of street lighting. All of these would have been obvious matters, which the deceased would or should have known. The need to exercise reasonable care in these circumstances for his own safety is obvious and should have been so to him.

88 In my view, his failure to take reasonable care for his own safety, either by walking on the other side of the road, or not walking on that road at that time in that manner at all, is a glaringly obvious failure by him to take reasonable care. The conduct of the deceased in this manner of walking was reckless. And that is not the end of the matter. The defendant was driving a school bus and the deceased should have been alerted to its approach by either the engine noise or the lights of the vehicle or both, even if he had his back to it. There was no constant flow of traffic on this road at that time of the morning to obscure the sound and light upon its approach.

89 I have no doubt that the intoxicated state of the deceased directly contributed his decision to walk in that way on that night. Section 5L of the Act would therefore mean that he is also presumed to be contributorily negligent. I have no doubt that his intoxication contributed to him being less aware of the dangers in which he placed himself and less able to properly respond to them. The plaintiff children have not sought to argue that the deceased's intoxication did not contribute in any way to the harm.

90 Accordingly, I find that the deceased's negligence contributed to the accident and it is necessary to assess the respective contributions to the harm in this case.

91 The defendant was not driving at excessive speed. His only fault was that he did not see the deceased and take steps to avoid hitting him. He was alive to the possibility of cattle on the road and was in all other respects driving carefully. The deceased for his part made significant departures from what a reasonable person would do to be as safe as possible in the circumstances. Had he been paying attention he might have had the opportunity to, for example, take action to save himself, by jumping into the ditch. I have to assess these respective departures from the proper standard of care.

92 In my view, the defendant driver made a tragic error, a brief deficit of attention resulting in his failure to see the deceased until after he struck him. The deceased was engaged in ongoing conduct on the road that night, which was obviously dangerous to himself and other road users. He had even, in conversation with Ms Cresswell, been told by her to stop walking along the road and to go and sleep on the beach.

93 In submissions, the court's attention was drawn to various cases relevant to the standard of care for drivers in charge of 'lethal machines'. The damage that a motor vehicle can do to a pedestrian is potentially much greater than the damage a pedestrian can do to the driver of a vehicle. The harm that can be done by any activity is recognised as relevant for the purposes of determining and assessing a breach of a duty of care. A driver of a motor vehicle in busy traffic or in suburban side streets may have to be aware of the erratic or careless behaviour of pedestrians or children in order to adjust the manner of driving accordingly. I do not consider that these authorities have any direct bearing on the facts of this case keeping a constant and proper lookout is a basic requirement in all driving circumstances. As I have already found, the defendant was driving his bus otherwise in an exemplary fashion.

94 The deceased's conduct in walking down the road in the way that he did was reckless, and in my view contributed to the accident to a greater extent than the fault of the defendant. The deceased created a situation of danger to himself on that road on that night. This was not a case of a driver travelling at excessive speed in circumstances where there were pedestrians likely to cross the road. It is necessary to take into consideration that the chances of a pedestrian walking along that road at night in that way were unlikely, for good reason: - it was dangerous. Moreover, the deceased was inattentive and remained on the road way as the vehicle approached.

95 A commonly cited passage in relation to this apportionment exercise is found in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492:

The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of a reasonable man and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] UKHL 4; [1953] AC 663 at 682.

96 The exercise of apportionment requires a judgment of what is just and equitable regarding the relative shares of responsibility of both the person harmed and the other party.

97 The deceased was significantly more to blame than the defendant for bringing about circumstances in which this tragic event occurred, and failing to react to save himself. He created a situation where an accident would happen unless the defendant took swift emergency action to avoid it. The defendant's fault was, in those few seconds, failing to see the deceased. Liability should be apportioned therefore as to 66% to the plaintiff and 33% to the defendant.

98 I will hear counsel as to the precise form of orders sought and costs.