Let me tell you about Ysaiah Ross.
On 30 May 2008 at 2.30 pm, Dr Ysaiah Ross stepped off the footpath outside the Sydney Airport and was struck by an unidentified minibus.
The driver of the minibus got out and told Dr Ross “he did not see him” and asked whether he was okay.
Dr Ross told the driver of the minibus he was okay.
The driver of the minibus noticed Dr Ross was bleeding. He went back to the minibus and got Dr Ross a box of tissues and again asked him if he was okay. Dr Ross again said he was okay.
Dr Ross said when he was bending down to wipe his cut, the driver went back to the minibus and drove off. Dr Ross didn’t get the driver’s name or the registration details of the minibus.
At the time, Dr Ross did not think he was seriously injured. He was feeling a little “groggy” though.
Dr Ross went to his car and left the airport.
He drove to the Prince of Wales Hospital but the wait was too long so then drove to a nearby doctor.
Dr Ross suffered an injury to his right foot, left knee, left hand and fingers. An x-ray showed a small fracture in his right foot. It was later discovered that the x-ray was misunderstood and Dr Ross had suffered a more serious fracture. This was the reason he continued to suffer problems with his foot.
Dr Ross’s Solicitors requested CCTV film from Qantas Airways and the Sydney Airport. They were told CCTV footage was only kept for 28 days. The incident was not captured on any CCTV footage and Dr Ross couldn’t find out the registration number of the minibus.
As the identity of the minibus was unknown, Dr Ross brought a claim against the Nominal Defendant.
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Nominal Defendant
The Judgement
The Nominal Defendant denied the driver of the minibus was at fault.
They argued that Dr Ross contributed to his injuries by not keeping a lookout when crossing the road, not using a nearby crossing and walking out in front of the minibus.
They also argued that Dr Ross did not try to find out the identity of the driver or the minibus.
The Judge found the driver of the minibus was negligent.
The Judge reduced the damages amount by 20% for contributory negligence. This means the Judge was of the view that Dr Ross contributed to his injury by not taking responsibility for his own safety.
The Judge found that Dr Ross had done everything he could to find out the identity of the minibus.
Dr Ross was awarded $409,175.00 but this was reduced by 20% so he received $328,540.00.
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The Appeal
The Nominal Defendant appealed the Judge’s decision.
They argued that Dr Ross did not look to his right at the time he said he did or, if he did, he did not look properly. They said the minibus was only 2.3 metres away when Dr Ross stepped off the footpath. They argued that had Dr Ross looked properly he would have seen the minibus. Therefore, the minibus should not be at fault.
However, the Court of Appeal agreed with the Judge’s decision that the minibus was negligent.
They considered the possible argument that the negligence of the driver of the minibus and Dr Ross was the same, that is, a failure to keep a proper lookout but other facts needed to be considered as well.
They said:
“… a failure by a pedestrian to keep a proper lookout might result in injury to himself/ however, a failure by a driver of a larger vehicle, such as a minibus, might result in not only injury to himself, but serious injury or death to an innocent party.”
It was decided that the driver was more at fault even though both the driver and Dr Ross’s actions to a similar degree may have caused the accident.
With respect to contributory negligence, the Court of Appeal increased contributory negligence from 20% to 35%.
Dr Ross amount was further reduced to $266,939.00.
The Nominal Defendant also argued that Dr Ross had enough time to get the name and address of the driver and the registration details of the minibus.
The Court of Appeal said there are 2 important things to remember when trying to find the identity of an unknown vehicle:
“ … whether Dr Ross had shown that the identity of the minibus would not be found after due inquiry and search. And secondly, consideration must be given to the meaning of due.”
They were satisfied that Dr Ross did not have to take steps at the time of the accident to find out the registration of the minibus or identity of the driver.
He only had 60-90 seconds to do so and for most of that time, he was in shock and "groggy”. Dr Ross couldn’t see the number plate from where he was. He also didn’t realise he had suffered an injury other than a cut at the time.
The Court of Appeal said Dr Ross was not expected to know that CCTV footage would only be kept for 28 days. Also, he was told by the doctor at the time that he had only suffered a minor injury.
MCW Legal's Opinion
This decision shows that the Courts will apply a reduction for contributory negligence in instances where people fail to take responsibility for their own lives and safety. However, it was still decided that the driver of the minibus had more responsibility than Dr Ross.
It is also extremely important in hit and run accidents that the person who is injured makes due search and inquiry to attempt to locate the driver of the vehicle that caused the injury and the vehicle’s registration details.
If the Nominal Defendant can prove to a Judge that the injured person hasn’t attempted to find these details, there is a risk they may lose their claim.
Hit and Run Statistics
The table below shows that the average amount of money received by an injured pedestrian is $118,000.00 compared to the average amount received by a motor vehicle passenger which is $66,000.00. Generally a pedestrian will suffer a more serious injury or death as a result of a motor vehicle accident than an occupant of a vehicle.
The Consequences
This decision is favourable for an injured person and can be relied upon to show that the driver of an unidentified vehicle has more responsibility to keep a proper lookout rather than a pedestrian.
Although Dr Ross still received a reduction in his damages, the Court decided that the driver of the minibus was still more at fault.
With respect to the issue of ‘due search and inquiry’, this case is also particularly favourable for hit and run victims. If you can prove that you did everything you can to find out the details of the driver at fault and the details of the vehicle it will be difficult for the Nominal Defendant to prove otherwise.
Written by Chandelle Whitney | Associate