Kigetzis v. Roche [2014] VSC 657
In this case, the Plaintiff was a pedestrian crossing at a traffic light controlled intersection when he was struck by a vehicle driven by the Defendant. The Plaintiff sustained severe injuries as a result. Liability was strongly contested with the Defendant alleging the Plaintiff walked across the intersection against a red light and in such circumstances the Defendant could not have avoided the incident.
The Plaintiff maintained the Defendant was negligent by entering the intersection at a speed where he could not stop in an emergency.
Prior to the incident the Plaintiff stated that whilst he was inside the hotel he saw the “green man” on the pedestrian crossing and he attempted to cross the road. His evidence was that he basically did not look up again following this. In closing submissions Counsel for the Plaintiff accepted that the weight of the evidence suggested the Plaintiff crossed the road against a red light.
The Court held that the lights were green prior to the incident for at least the five seconds referred to by the Defendant and more likely close to eight seconds with such a finding supported by signal design at VicRoads who provided evidence regarding the signal sequence of the lights at the intersection.
The Court held the Defendant was negligent in the manner he approached and entered the intersection prior to the incident and his negligence was the cause of the incident. A stationary bus and a car in the right lane facing a green light ought to have put the Defendant on notice that caution was required upon entering the intersection.
The Court held the Plaintiff bore a very significant responsibility for the occurrence of the incident as he blindly set off across the intersection against a red light seemingly uncaring of the consequences. The Court found the Defendant should have entered the intersection at a very low speed and with a foot at the brake which would have enabled him to stop immediately at the point of entry to the intersection. The Court found that “the ability to be able to stop prior to, or upon, entering the intersection was what was required of a reasonably prudent driver in the presenting circumstances.”
The Court found the Plaintiff may bear the primary responsibility for the incident noting he failed to take care for his own safety. As such the Plaintiff’s conduct amounted to a reckless departure from the reasonable care to be expected of a pedestrian at an intersection of two major roads. This had been a major cause of the incident. The Court considered it appropriate to reduce the Plaintiff’s damages by 60% for contributory negligence.
