Pedestrian Accident Claims | Simmonds-Thatcher v Kamari
8 min read
19 June 2023
In Simmonds-Thatcher v Kamari [2021] VSCA 133, the Victorian Court of Appeal considered whether a driver was liable for striking a pedestrian who emerged from behind a stationary taxi.
The Court held that merely seeing an adult pedestrian leave a taxi did not require the driver to travel at a speed that would enable him to stop if she unexpectedly entered the road.
Although the Court was prepared to infer that the driver may have failed to keep a proper lookout immediately before the collision, the pedestrian could not prove that the collision probably would have been avoided if he had done so. Her damages claim was therefore dismissed.
How did the pedestrian accident occur?
On 14 November 2015, Ms Simmonds-Thatcher travelled with friends and children in a maxi taxi following a social gathering.
The taxi stopped beside the western kerb of Hartington Street in Glenroy. Its front wheels were positioned on a speed hump carrying an advisory speed of 20 kilometres per hour.
Ms Simmonds-Thatcher exited the taxi on the passenger side and stepped onto the nature strip. She then walked around the rear of the taxi, intending to cross the road.
Before entering the road, she looked to her right but did not look to her left. She then stepped from behind the taxi into the path of a vehicle driven by Mr Kamari, which was approaching from her left.
Mr Kamari had seen Ms Simmonds-Thatcher leave the taxi. However, she then disappeared from his view behind the vehicle. She was struck after emerging from behind it and suffered injuries to her left wrist and face.
What did the trial judge decide?
The trial judge found that both Ms Simmonds-Thatcher and Mr Kamari were negligent.
The judge concluded that, because Mr Kamari had seen her leave the taxi, he should have:
continued to monitor her movements;
driven at a speed that enabled him to stop; and
avoided the collision when she entered the road.
However, Ms Simmonds-Thatcher was found predominantly responsible because she entered the road without looking to her left for approaching traffic.
The trial judge apportioned responsibility:
25% to Mr Kamari; and
75% to Ms Simmonds-Thatcher for contributory negligence.
Mr Kamari appealed that decision.
Was the driver required to anticipate that the pedestrian would enter the road?
The Court of Appeal confirmed that drivers owe pedestrians and other road users a duty to exercise reasonable care. However, that duty does not make a driver strictly liable whenever a pedestrian accident occurs.
The Court found that the trial judge had imposed an excessive standard of care on Mr Kamari.
Ms Simmonds-Thatcher was an adult. There was nothing about her conduct when she left the taxi that indicated she would walk behind it and enter the road without checking for approaching traffic.
The Court said it was reasonable to assume that an adult pedestrian would act rationally and avoid placing herself in danger.
Requiring Mr Kamari to travel at whatever speed would have enabled him to avoid the collision involved impermissible hindsight reasoning. The fact that an accident occurred did not itself establish that his speed was excessive.
Can a driver be required to slow down near an obstruction?
The decision does not mean that a driver is never required to slow down when approaching a stationary vehicle or another obstruction.
The required standard depends on the surrounding circumstances. A driver may need to exercise additional caution where, for example:
a young child is near the road;
a pedestrian appears likely to enter the roadway;
a stationary vehicle creates an identifiable hazard;
a bus remains stopped unexpectedly at a green light; or
other circumstances warn the driver that someone may move into the vehicle’s path.
In this case, the mere fact that Ms Simmonds-Thatcher had exited the taxi onto the nature strip did not provide a sufficient warning that she would enter the road.
Did the driver fail to keep a proper lookout?
The Court of Appeal considered that it was open to infer that Mr Kamari failed to keep a proper lookout when Ms Simmonds-Thatcher emerged from behind the taxi.
The evidence indicated that she had crossed a substantial part of the roadway before being struck by the front passenger side of his vehicle. This suggested that Mr Kamari may not have observed her as promptly as he should have.
However, proving a breach of duty was not enough. Ms Simmonds-Thatcher also had to prove that the breach caused her injuries.
Why did the claim fail on causation?
The evidence did not establish Mr Kamari’s precise speed or how quickly his vehicle could have stopped.
Even assuming that he was travelling at approximately 20 kilometres per hour, Ms Simmonds-Thatcher may have been visible for no more than two seconds before impact. During that short period, Mr Kamari would have needed to:
see her emerge from behind the taxi;
appreciate that she was entering his path;
react to the danger; and
apply the brakes with enough time to avoid the collision.
Ms Simmonds-Thatcher herself described the accident as occurring in “a split of a second”.
The Court found that it was possible that a better lookout might have prevented the collision. However, possibility was insufficient. Ms Simmonds-Thatcher had to establish that, more probably than not, the collision would have been avoided.
The evidence did not permit that conclusion without speculation. Causation was therefore not established.
What did the Court of Appeal decide?
The Court granted leave to appeal and allowed the appeal.
The judgment in favour of Ms Simmonds-Thatcher was set aside and her proceeding was dismissed.
Accordingly, the trial judge’s apportionment of 75% contributory negligence no longer determined the outcome. Ms Simmonds-Thatcher’s claim failed because she could not establish that Mr Kamari’s negligence caused the collision.
What does this decision mean for transport accident claims?
The decision demonstrates that:
drivers must exercise reasonable care but are not automatically liable for pedestrian accidents;
the standard of care must be assessed without hindsight;
an adult pedestrian is generally expected to check for approaching traffic before entering a road;
circumstances indicating a particular danger may require a driver to slow down or exercise additional caution;
a failure to keep a proper lookout will not establish liability unless it caused the accident;
the injured person bears the burden of proving causation on the balance of probabilities; and
proof that an accident might have been avoided is insufficient if the evidence does not show that it probably would have been avoided.
Can the pedestrian still receive TAC benefits?
Common law damages are distinct from no-fault TAC benefits.
A person injured in a transport accident may be entitled to TAC-funded treatment, rehabilitation, income support or an impairment benefit even if they caused the accident or cannot prove another person was negligent.
By contrast, a common law damages claim ordinarily requires the injured person to establish both a serious injury and negligence by another party that caused the accident.
Speak with a Melbourne TAC lawyer
If you have been injured as a pedestrian, passenger, cyclist or driver, you may have entitlements under Victoria’s TAC scheme even where responsibility for the accident is disputed.
Bastion Legal assists people injured in transport accidents throughout Melbourne and Victoria. Contact us to discuss your accident, your TAC entitlements and whether you may have a common law damages claim.
How we can assist…
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If you’re facing a situation like the one discussed above, you do not need to face these issues alone. We’re here to protect your interests and work towards the outcome you deserve.
Contact us today for a free consultation and take the next step with confidence.