IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Common Law Division
CIVIL Circuit List - BENDIGO
S ECI 2021 00017

Peter Walker	Plaintiff	
		
v  		
		
David Smith	Defendant	

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JUDGE:	FORBES J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	17, 18, 21 March 2022	
DATE OF JUDGMENT:	14 April 2022	
CASE MAY BE CITED AS:	Walker v Smith	
MEDIUM NEUTRAL CITATION:	[2022] VSC 188	

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TORTS – Negligence – Contributory negligence – Motor vehicle accident – Inebriated pedestrian struck by driver at night – View of the location of the accident – Quantum of damages agreed by parties – Whether defendant driver was negligent – Whether plaintiff’s actions gave rise to contributory negligence – Defendant driver failed to keep a proper lookout – Plaintiff walking on road amounted to contributory negligence – Apportionment of liability – Warren v Coombes [1979] HCA 9; 142 CLR 531 – Manley v Alexander [2005] HCA 79; 80 ALJR 413; 223 ALR 228 – Simmonds-Thatcher v Kamari [2021] VSCA 133.
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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr J. Mighell QC
Mr M. Fogarty 	Slater & Gordon Ltd	
			
For the Defendant	Mr A. Moulds QC
Mr R. Kumar	Solicitors for the Transport Accident Commission	

HER HONOUR:
1	Peter Walker was a pedestrian struck by a vehicle driven by David Smith in Station St, Rushworth on 14 July 2017. Mr Walker sues the driver for damages alleging negligence in the driving of the vehicle. The defendant denies negligence and raises the issue of contributory negligence. The circumstances said to give rise to the negligence and the contributory negligence alleged are detailed further below. Understanding the evidence was assisted by a view of the location of the accident on the second day of trial.  
2	On the first day of trial the parties agreed the quantum of damages leaving only the issue of liability of the defendant and, if relevant, then that of the plaintiff. As to quantum, at the time of the motor vehicle accident, Mr Walker was 36 years old having been born on 23 July 1980. He is presently 41 years. He is a single man who grew up in Rushworth. He attended school to year eleven. He obtained a Certificate 1 in Engineering and then completed an apprenticeship. He has worked at JNR Engineering since about 2001. He was employed fulltime and did a variety of tasks including welding, yard work loading and unloading trucks. He held this employment for about sixteen years until the time of the accident. He has not returned to work since.
3	In the accident, he suffered a left ankle fracture and a right shoulder and arm injury. He was taken by ambulance to Goulburn Valley Hospital where he underwent an open reduction and internal fixation on his ankle. He had further significant surgery to the left ankle in March 2018 and again undergoing an arthroscopy in February 2019. His shoulder and arm injury received limited conservative treatment. His ongoing injuries have led to psychiatric consequences. The parties have agreed quantum at $600,000 plus retention of benefits already paid. 
The location of the accident
4	Rushworth is a small country town mid-way between Seymour and Shepparton. The highway between Bendigo and Murchison, as it passes from west to east through Rushworth, is named Station St. It is a single carriageway in each direction and reduces to a 60km zone as it passes through the town. The defendant was travelling eastwards towards Murchison. Station St curves gently left and then right before a long straight stretch commencing from the Old Tatura Rd turnoff on the left. Although passing through the town, Station St retains the character of a country road. Travelling eastward past Old Tatura Rd, the right hand side of the road is bordered by a skate park which is a treed area with a pedestrian path winding through it. Between the skate park and the road, a gully runs parallel to the road, separating it from the park. There is a crossover built up over the gully giving access from the roadway to the skate park (the skate park entrance).
5	On the left hand side of the road there is a Lions Playground and then the Rushworth Recreation Reserve with a BBQ and park area. Beyond that are houses, set back some distance from the road. The road itself has gravel shoulders and a grass verge extending back some distance. There is a row of power poles along the eastbound side of the road only. They are set back on the grass verge. Some, but not all have a streetlight extended horizontally from the cross arm of the power pole. The lights point directly at the ground below, some distance back from the bitumen. 
6	The accident occurred some short distance past Old Tatura Rd although there was a dispute as to the location of the accident. It occurred at approximately 7.30pm. It was dark and the moon had not yet risen. 
7	At the view the parties took some measurements and some distances were agreed.  The first power pole past the Old Tatura Rd was 82m past the intersection. It had a light fixed to it. The next power pole with a light was a further 60m along (second light pole). The second light pole was  approximately 38m past the skate park entrance on the opposite side of the road. The next light pole was a further 99.5 m along (third light pole). The second and third light poles were located just over 8.5 m back from the bitumen. The light on the second light pole extended to a distance of 7m from the edge of the bitumen. In the case of the third light pole the distance was 7.3m.  
8	Between the second light pole and third light pole was another power pole; this one without a light attached. Near this power pole was a 60km per hour road sign. There was a  large concrete culvert that ran underneath the road from side to side some 20m past this 60km road sign. On the northern or eastbound side, the culvert opened into a large depression. The depression was such that it would pose difficulties for any pedestrian. This area around the culvert opening was marked by four white posts. The distance between the bitumen and the white post closest to the bitumen was 5.2m.  
9	The photo below, taken during the view, shows Station St looking east. The two persons in orange vests are standing approximately level with the second light pole.  Behind them the 60km speed sign can be seen and two of the white posts marking the culvert. Further back the third light pole can be seen, roughly adjacent to the council bins.

10	The plaintiff’s evidence was that the point of impact occurred approximately 7m past the second light pole. The defendant’s evidence was that the point of impact occurred approximately 3.5m past the third light pole. The distance from Old Tatura Rd to the point of impact on the plaintiff’s evidence is 149m. The same distance measured to the point of impact described by the defendant is 245m. The road is straight and level for the full distance. 
The circumstances of the accident
11	Both the plaintiff and defendant gave evidence. There was no other witness. The plaintiff said that he had finished work that day, a Friday, at about 1pm. He worked in Kyabram. He lives in Station St, in Rushworth. There are houses along the north side of Station St and west of the third light pole, commencing with number 29. His home is some distance further along. He returned home where he had a few drinks through the afternoon. He then went to the hotel for happy hour from about 5:30pm or 6pm. He said that typically he would go to the hotel on Friday and Saturday nights and would walk there and back. 
12	His evidence was that he generally took the same route home from the hotel. He would walk from along High St out of town, over the footbridge that crosses the old railway line and then follow a footpath that goes to and through the skate park. He would exit the skate park at the skate park entrance onto Station St, then he would cross the road and walk along the northern or eastbound side of Station St to get home. He said typically he would walk along Station St ‘on the edge of the road’. This was because ‘there’s no footpaths there, so it’s the easiest way to go walking down there.’ He said that he would walk along the edge of the road until he got past the culvert and then he would walk further back from the road. 
13	On 14 July 2017, he was walking home to feed his cat. He was intending to go out again after and visit a friend. He said he was walking on the edge of the road. As can be seen from the image below, the bitumen on the edge of the road is poorly defined in the area between the second light pole and the culvert. The eastbound side has a shoulder that is part grey bitumen and part gravel. This photo shows where the plaintiff says he was walking at the point of impact. 
14	The plaintiff said he was walking east when he was clipped and struck on his right shoulder and arm causing him to be swung around and come down, injuring his left ankle. He had his back to traffic travelling in the same direction as he was walking.  He said that he had no warning before being struck. The plaintiff said that he did not regard himself as being intoxicated when he was walking home. He said that he remained on the gravel just off the bitumen until the ambulance arrived. He recalled having a doona put over him. 
15	In cross examination, as in his answers to interrogatories, the plaintiff said that he estimated he had drunk the equivalent of about 16 pots of beer over the course of the afternoon and evening. He disagreed that he was unsteady on his feet and said ‘I was walking quite fine’. He said he neither lost his balance nor wandered into the path of the vehicle. He repeated a number of times that he always walked on the edge of the road because ‘it’s the most easiest spot’. He said it was easiest because it avoided potholes in the gravel and ‘bindis’ through the grass. He said he never paid much attention to the street lights. 
16	He said he didn’t see any headlights, nor did he hear any car coming. He denied that his failure to see headlights or hear a vehicle before impact was because of the amount of alcohol he had drunk. He did not accept that his alcohol consumption that day affected his ability to recognise hazards on the road. He denied using his mobile phone as a torch in the dark, nor was he on a phone call at the time of impact. 
17	He said he recalled the police arriving and an ambulance being called. He could not recall the defendant’s actions after the accident or another vehicle stopping and illuminating the area with a second set of headlights. He disagreed that the defendant helped him off the road. He said he called a friend after the accident who attended at the scene. He could not recall what clothing he was wearing or whether he had a beard at the time. He could not say why a driver would be alerted to the presence of a pedestrian on the edge of the road or in the roadway itself. 
18	The ambulance records, which were tendered, note an approximate time of accident at 7:30pm, with the ambulance call made at 7:48pm. The scene is described as 29 Station St in Rushworth. The ambulance arrived at the scene at 8:38pm. The plaintiff was observed to be ‘calm/quiet’ and his speech ‘clear and continuous’. The description recorded included: ‘Pt states he felt left ankle collapse due to impact and fell on right side. No headstrike, no LOC, pt recalls entire event’. The level of intoxication (recorded as an estimate of 16 beers) led to reduced dosage of pain relief by the ambulance crew.
19	The plaintiff’s phone records which were tendered show on the day of the accident,  a phone call at 5:47pm and the next at 7:59pm. 
20	Mr Smith works as a farm manager in Marnoo in the Wimmera region. He was travelling to Sydney, having left work about 4:30pm that afternoon. He was driving a 2009 Toyota Hilux and said his headlights were on high beam. He described the difference between dipped headlights and high beam headlights as ‘the low beam had just – are just a standard dull headlight, and the high beam was just a little bit brighter, but not overly bright. Just – yeah, just bright enough you can see where you’re going’. He had stopped in St Arnaud before travelling on. He estimated that he had been on the road between St Arnaud and Rushworth, for about three hours. He said the speed limit dropped from 100kmh to 80 km, then to 60km upon arriving into Rushworth, and that he complied with the speed limits. 
21	The defendant said he was still in the 60km zone and ‘I just seen a figure arrive on the road… about 3 feet almost in the middle of my lane.’ He said ‘it just arrived there and so I’ve just automatically swerved to the right, gone over the white line’. The defendant said he couldn’t say if he hit the brakes straight away but he obviously did at some stage as he pulled up quite quickly. 
22	The defendant said that the front left hand side of the car’s bull bar struck an object (not realising at the time it was a person) who then, as the car went past, swiped the passenger side mirror pushing it inwards before then falling out of sight. The defendant turned around and in the illumination of the headlights saw he had hit a person. He parked his car by the side of the road facing east just in front of the plaintiff to protect him from passing vehicles and went to the aid of the plaintiff. He asked the plaintiff if he was OK. He said the plaintiff attempted to stand and he noticed that the plaintiff’s leg was ‘all bent’. He said he helped the plaintiff off the road about ‘three feet onto the gravel at the side’. The defendant got a doona from his car and covered the plaintiff who had said he was cold. The defendant said the plaintiff seemed intoxicated to him. He said when the police arrived he was instructed to move his car off the road and he parked looking directly into the front of the house at number 31 Station St. 
23	The defendant put the point of impact as about 3.5m past the third light pole which was outside number 31 Station St. He said that the plaintiff appeared in about the middle of his lane. He said the plaintiff had been wearing a black top and black jeans, had a full dark beard and was wearing a black beanie. The defendant said it was dark, and that he thought that there were no lights in the area. He described the street lights that were there as pedestrian lights and to him as a driver they were non-existent.
24	In cross-examination, the defendant disagreed with the plaintiff on the location of the ambulance when it arrived. The defendant said the ambulance had travelled along in a westerly direction and u-turned to park on the northern (eastbound) side of the road facing out of town in the direction they had come, just past number 31 Station St with the rear of the ambulance facing the front of the police car. 
25	The defendant agreed that the lights on his vehicle were on high beam for the purpose of observing more carefully anything that might be on the road. He disagreed that on high beam the lights would easily illuminate 100m of road and estimated lighting a distance of what ‘could be 70 metres’. He said when he observed the plaintiff he was not walking, rather he was ‘just standing there’. He estimated that he first saw the plaintiff at a distance of 50m away. The defendant agreed that he suddenly saw the plaintiff and swerved to try and miss him. It was suggested that he saw the plaintiff at the last minute or ‘until you were nearly on top of him’. He disagreed saying he did try to avoid hitting the plaintiff but agreed he was so late in observing the plaintiff that he couldn’t avoid hitting him. Later, when the proposition was put to him again, the defendant did not agree that he did not see the plaintiff until the last second but agreed that when he did see something he did not have enough time to brake, or to drive around the stationary person. He agreed that he stopped about 20 or 30 metres beyond the point of impact. 
26	The defendant tendered a report of Professor Edward Ogden. Ogden is a medical practitioner specialising in addiction medicine and a consultant in forensic medicine. The purpose of the report was firstly to provide opinion evidence as to the analysis of the blood sample taken from the plaintiff at Goulburn Valley Hospital the evening of the accident. That sample was said to show the equivalent of a blood alcohol concentration of 0.228%. The plaintiff did not dispute the testing of the blood sample.
27	The report also addressed the effect of alcohol on human performance, particularly impairment of attention and concentration upon multiple tasks. In substance, the report outlined how alcohol clouds the processing of information and a person affected pays attention to a simple task and ignores other considerations such as their environment. It provided some statistics as to the involvement of alcohol in road accidents involving pedestrians. He was asked to express opinion as to the effect on the plaintiff’s behaviour of the level of alcohol. His report indicated the plaintiff would be slower to recognise the presence of a vehicle or decide what he should do. 
Submissions of the parties
28	The defendant submitted that he did not depart from the standard of care required of a driver of a motor vehicle.  He submitted that the point of impact occurred in the eastbound lane as the defendant described, and not on the edge of the road. There was no evidence that his vehicle had left the roadway prior to impact. There is difficulty in observing a person in dark clothing without anything to reflect in headlights when the surrounds are dark and the lighting ineffective in illuminating the roadway.  
29	The defendant submitted that a prudent but not overly cautious driver would have no reason to believe that a pedestrian might be standing or walking on the roadway. On the defendant’s estimate,  he first observed the plaintiff at a distance of 50m while travelling at 60km per hour. The defendant pointed to the absence of expert opinion as to reaction times and submitted that the plaintiff’s case was based upon a speculation – ‘how could you not have seen him and how could you not have moved.’ Such a speculation involves hindsight reasoning that because the defendant hit the pedestrian he wasn’t keeping a proper lookout.  
30	The defendant attempted to avoid the plaintiff when he did observe his presence. It was submitted that by finding that the defendant ought to have avoided the plaintiff in the available time and distance places too high a standard of care on a driver of a motor vehicle. To that end the defendant referred to a number of cases including Simmonds–Thatcher v Kamari and Ilievski v Zhou that discuss the duty of a driver to anticipate the presence or action of a pedestrian, and submit that there was nothing that could have reasonably required a driver to exercise a heightened degree of caution. There was no evidence of anything the defendant could have done differently or appropriately that would have avoided the collision. 
31	As to the conflicting accounts, I should prefer the recollection of the sober man over the intoxicated one. As to the likely impairment associated with Mr Walker’s level of intoxication the defendant relied on the opinion of Professor Edward Ogden.  
32	The defendant submitted that there are a number of hypotheses as to how the accident came about. The defendant cannot say where the plaintiff came from, but I should not necessarily accept that the plaintiff was walking along in a straight line. The plaintiff might have been standing not walking, he might have moved into the path of the vehicle at the last minute. In those circumstances, the plaintiff hasn’t discharged his burden of proof. 
33	The plaintiff submitted that although the location is described as a country road it is nevertheless traversing a township with a speed limit reduced to 60km per hour, and it is to be contrasted with travelling on such a road outside the built up area where the speed increases to 100km. The high beam lighting ‘probably negates to some extent’ the street lighting. The plaintiff is not moving laterally across the path of the vehicle. He is either walking in the same direction, or on the defendant’s evidence, standing still. There is no sudden last minute movement by the plaintiff to explain why the defendant did not observe him until the last moment, or suddenly. The defendant conceded he saw the plaintiff ‘suddenly’ just before he turned the steering wheel. The plaintiff submits this demonstrates a failure to keep a proper lookout.
34	The plaintiff concedes that if the defendant is negligent then he is also contributorily negligent based upon his presence on the road intoxicated and unaware of the vehicle behind him. 
Did the defendant fail to keep a proper lookout?
35	The purpose of high beam lights in country driving generally is to improve visibility of the roadway ahead. When engaged high beam does extend the distance of illumination somewhat. I accept that on high beam reflective items are illuminated better and most likely from a distance greater than the pool of illumination thrown by the headlights themselves.  There are no relevant reflective items along the stretch of road. The case comes down to identifying when a driver keeping a proper lookout ought to have become aware of the presence of the plaintiff on the roadway.   
36	I was taken to a number of cases in submissions by the defendant. Generally, they dealt primarily with circumstances where a driver acting reasonably ought react to the possibility of a pedestrian coming into their path and so either slow or brake. In both Simmons-Thatcher and Ilievski, the premise was that in keeping a proper lookout the driver observed something that ought give rise to a heightened possibility of a risk of injury to a pedestrian: a woman alighting from a maxi taxi who might be anticipated to cross the road, or a man jogging in place at the curb side, or a stationary school bus or line of traffic that might indicate the possibility of pedestrians. Having observed the possibility, those cases deal with what, if anything a prudent driver ought to do in response. 
37	However, there is nothing in this case that suggests that a reasonable driver ought anticipate the presence of a pedestrian. It is squarely put on the basis that the only opportunity to observe and react to the presence of a pedestrian on the roadway is upon seeing him in the headlights.  
38	The duty of a driver to other road users is to exercise care by controlling ‘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’.  It was readily accepted in Manley v Alexander that the possibility of someone lying on a roadway at 4:00am in dark clothing (as Mr Alexander was when he was struck) was a remote possibility. There, the driver, who took his eyes off the road for two to three seconds alerted to the presence of another person which may have required him to respond but continued at the same speed. Gummow, Kirby and Hayne JJ said in Manley that:
Driving requires reasonable attention to all that is happening on and nearby the roadway that may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already or may later come to be ahead of the vehicle’s path. 
39	Whether that duty has been breached is determined by a consideration of all circumstances and what is reasonable in light of them. 
40	The question to be answered in this case is whether a finding that the driver failed to keep a proper lookout is speculative as the defendant contends or is a properly drawn inference from known facts. 
41	In this context it is useful to  look at the underlying dispute in Warren v Coombes which was a collision between a bicycle ridden by a young boy and a car driven by Mr Coombes. In short, Warren and another boy emerged into view without warning from behind a hedge, travelling quickly and cutting a corner so that they were on the incorrect side of the road. Mr Coombes argued that it was not negligent to drive at the speed of 30-35miles per hour and it could not be inferred that he failed to keep a proper lookout because he could not be expected to foresee Warren’s emergence and attempt to execute a dangerous manoeuvre (cutting the corner on the wrong side of the road in the path of a vehicle that had right of way). At trial the defendant was found not to be negligent and the Court of Appeal by majority deferred to the fact finding of the trial judge. 
42	The majority judgment quoted at length from Viscount Simonds in Benmax v Austin Motor Co:
But I cannot help thinking that some confusion may have arisen from a failure to distinguish between the finding of a specific fact and a finding of fact which is really an inference from facts specifically found, or, as it has sometimes been said, between the perception and evaluation of facts. An example of this distinction may be seen in any case in which a plaintiff alleges negligence on the part of the defendant. Here it must first be determined what the defendant in fact did and, secondly, whether what he did amounted in the circumstances (which must also so far as relevant be found as specific facts) to negligence. 
43	Looking at the specific facts as found; that the driver first saw the boy at a distance of 90 to 100m from the intersection but nevertheless could not stop until he was into the intersection, the High Court by majority concluded that the vehicle’s position on the road and the speed of the driver both contributed to the collision. The proper inference to be drawn from those facts was that the driver was negligent.  Given the finding that the driver saw the boy as soon as he came into sight, a failure to keep a proper lookout was not pursued before the High Court. 
44	In Simmonds-Thatcher, the conclusion that the driver’s duty of care did not require him to travel more slowly, having seen an adult pedestrian alight from a vehicle, did not dispose of the appeal. The Court of Appeal went on to consider whether the facts as found at trial supported an inference that the duty of care was breached by the driver failing to keep a proper lookout when the pedestrian emerged from behind the taxi. The Court of Appeal cited the proper approach in accordance with Warren v Coombes and then said: 
In the present case, the fact that the applicant failed to observe the respondent walking on the roadway but believed her to be running, coupled with the fact that the respondent was struck with the passenger side front of the applicant’s vehicle after she had substantially walked across its path, tends to suggest that the applicant was not keeping a proper lookout immediately prior to the happening of the accident. That is, he was not keeping a proper lookout when the respondent emerged from behind the taxi and moved across his path of travel. 
45	The court came to the view that: 
In our view, it was open to find on the evidence that the applicant breached his duty of care to the respondent by failing to keep a proper lookout at the point when the respondent emerged onto the roadway from behind the taxi and proceeded to cross a substantial part of the roadway in front of him.
46	How the inference that the driver was not keeping a proper lookout could be drawn was described by the court:
As we have observed, there is no direct evidence of the applicant’s speed as he traversed the speed hump. If, however, his vehicle was travelling at 20 kilometres per hour in accordance with his statement that he slowed at the speed hump (and as is inherently probable given the advisory speed limit), this is equivalent to a speed of 5.5 metres per second. Given the point of impact with the applicant’s vehicle (as admitted by the applicant and confirmed by the police officer’s observations), it may be inferred that the respondent walked approximately 2.5 to 3 metres out from behind the taxi and across the applicant’s path. The applicant, if he were keeping a proper lookout, would in turn have had the time that it took the respondent to walk the 2.5 to 3 metres across the roadway to perceive the respondent, react to her presence and attempt to stop his vehicle to avoid hitting her.
Assuming for the purposes of analysis, without deciding, that the respondent walked at an ordinary walking pace from a stationary position of approximately 1.3 to 1.45 metres per second, she would have been potentially visible to the applicant (and he to her) for no more than two seconds before the impact. If travelling at the recommended speed of 20 kilometres per hour, the applicant could have travelled no more than 10 metres in this time, placing him on or just before the speed hump when the respondent moved into his path.  
Ultimately, the question of whether the driver could have reacted so as to avoid a collision was attended by material uncertainty and no inference could be drawn as to causation. 
Findings
47	The collision occurred at about 7:30pm in the evening and it was dark. I find that the streetlights were ineffective in lighting the roadway and there was no other source of light along that stretch of road other than the defendant’s headlights. I accept that the defendant was travelling at the relevant speed limit of 60km per hour and that it was appropriate that he do so. There was no other or competing distraction to which the driver needed to respond. 
48	As to the location of the accident, I accept the defendant’s evidence that it occurred just past the third light pole. Given the plaintiff’s level of intoxication, the absence of any anticipatory awareness of the impending accident, the shock and pain he described afterwards and his inability to recall many of the details in the aftermath of the accident, I find the plaintiff’s precise evidence as to the location to be unreliable. I find his explanation that his certainty of this as the point of impact was because ‘I could clearly see the skate park as I was getting in the back of the ambulance’ to be implausible. 
49	In terms of liability however, I am not convinced that much turns on the dispute as to the point of impact. Both accounts place the plaintiff a short distance from a light pole, but I have accepted, and it seems not to be controversial, that those lights had little if any effect of illuminating the roadway. Indeed, they are set so far back that they seem more likely to have been designed to assist those walking on the grass verge. If anything, the point of impact as described by the defendant allows a longer stretch of straight road immediately prior to impact. I am satisfied that the plaintiff was wearing black, or at the very least dark clothing and could not be observed unless illuminated by the headlights.  
50	I do accept however, that on the evening of the accident the plaintiff was walking home in a fashion that was his regular habit. Intoxicated or otherwise, it seems his habit was to walk along the edge of the road, regardless of the danger, because he found it ‘the easiest’. By this he meant he avoided the uneven surface of the gravel and the grass verge. I do not accept his explanation that he was walking as he did because of the culvert. Even though it would be necessary to avoid the culvert, a pedestrian could do so remaining comfortably some distance off the bitumen road. I accept therefore that he was walking towards home on the bitumen and in the eastbound laneway not on the edge of the laneway. I cannot say how far into the laneway he was.  
51	I do not accept his evidence in which he sought to distinguish between the dark bitumen and the lighter area of bitumen to the edge of the road. Primarily, this is because I am satisfied that this is not the point along the road where the impact occurred, but also because I do not accept the precise nature of the plaintiff’s recollection of his positioning in light of the many other details about which he had no recollection. The edge of the bitumen at the point at which the defendant places the point of impact had a much clearer demarcation between a straight edge to the bitumen and the gravel shoulder of the road. I accept that the plaintiff was not using his mobile phone at the time. To the extent the defendant believed that the plaintiff was doing so, I am satisfied he is mistaken given the phone records. 
52	I am unable to accept the plaintiff’s evidence that his judgment, hazard perception or ability to react to an emergency situation was not impaired by alcohol.  This assertion flies in the face of his own estimate of the amount he had drunk that day, the reduced painkilling medication given by the ambulance officers and the concession made on his behalf that his level of intoxication was relevant to the question of contributory negligence.  
53	I have concluded  that the defendant’s evidence that ‘suddenly’ the plaintiff appeared and that he had insufficient time to brake prior to hitting the plaintiff suggests that he did not observe the plaintiff until the last possible moment. A number of factors lead me to this conclusion.  
54	First, high beam headlights are generally used on country roads, often for roads at which the speed limit is set to 80km or 100km. High beam lights coupled with a lower speed of 60km at least suggests a greater reaction time between the moment of observing a hazard and impact with that hazard, than might be presented by unexpected hazards in open stretches of road travelling at higher speeds. I have some doubt about the reliability of the defendant’s estimate that his high beam lit up a distance of approximately 70m but I have no evidence of what an accurate estimate might be.  
55	Similarly, the defendant’s evidence that he first saw the plaintiff at a distance of approximately 50m is of doubtful accuracy. I take it as no higher than an estimate that the plaintiff was visible a very short time after the headlights first illuminated him. If it is an estimate, it is somewhat inconsistent with his other evidence that he only had time to commence to swerve but not to brake prior to impact. He said in evidence in chief and confirmed in cross-examination that he was able to brake and pull up within 20 to 30 metres after impact. 
56	Third, having accepted that the plaintiff was walking along immediately prior to the accident, a description by the defendant that the plaintiff seemed to be standing still is consistent with only the briefest of glimpses prior to impact.
57	Although in this case there is no expert evidence as to reaction times and distances travelled, some simple calculations can be made. If I accept that the high beam headlights illuminate at least 70m of roadway, and that there is some interval for perception of a hazard illuminated by those headlights, then the distance at which a driver keeping a proper lookout would observe a pedestrian on the roadway ahead is 50m or more. The defendant estimated this was the distance at which he first saw the plaintiff. Travelling at 60kilometres per hour, a car would travel, as Mr Mould’s mathematics correctly submits, 16.67 metres per second, giving the driver (on Mr Smith’s own evidence) a 3 second window to react to an unexpected hazard. At higher speed the opportunity to react would be less. There was no suggestion that he had taken his eyes off the road ahead to check mirrors or act otherwise in keeping a proper lookout. The road is straight and he was looking ahead. 
58	The fact that the defendant described the pedestrian’s appearance as ‘sudden’ and the fact that he commenced to swerve but had insufficient time to brake suggests observation for a period of less than 3 seconds and really not much more than a fraction of a second. It leads me to infer that the defendant was not keeping a proper lookout as to the road ahead immediately prior to the collision. Had he done so, he would have had opportunity to slow and swerve. There was no other traffic to be considered. While I accept that the actual presence of a pedestrian was unexpected, the reduction in speed limit due to the built up nature of the town through which the road was passing did indicate that there was a higher incidence of potential hazards than might be found on the open road. 
59	Given that the plaintiff was struck a glancing blow by the vehicle as it passed, the swerve initiated by the defendant very nearly did manage to avoid the collision. In those circumstances I am able to infer that had the defendant kept a proper lookout, and observed the hazard at a distance of approximately 50metres, while travelling at a speed of 60 kilometres per hour, it was probable that the collision could have been avoided. 
60	There is no doubt that the plaintiff’s actions walking on the bitumen in the dark with his back to oncoming traffic as he did amounts to contributory negligence. That he did so while intoxicated is really the only explanation for the fact that on a clear night, in the absence of other traffic, he neither heard the approaching vehicle, nor saw its headlights and thereby failed to have regard for his own safety.  
61	This in my mind is substantial and deliberate behaviour, of greater comparative significance than the lapse in attention that has led to the driver failing to keep a proper lookout. This underscores the importance of a driver remaining alert in order to keep a proper lookout, given the potential for injury to oneself, passengers and other road users that may result from such lapses. 
62	I would apportion negligence of the defendant at 30% with contributory negligence of the plaintiff at 70%. 

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