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Kangaroos – Motor accident cases

D lost control of his vehicle when he swerved onto incorrect side of the road to avoid hitting kangaroo at 3am in the morning. D collided with P who was coming from the opposite direction. Unclear whether kangaroo came from D’s left or right. “As the animal was in the middle of the road and the impact was with the front nearside bumper-bar … then it does seem that the impact occurred when … [D’s] vehicle was already to a considerable extent on its incorrect side of the road. I am not satisfied that at the time the kangaroo came into the … [D’s] view the [P’s] lights were already visible … and so I would not be prepared to find that he knew or should have known that he was diverging into the [P’s] path … [D] offers no explanation of being on the wrong side of the road when it appears that there was in all the circumstances at least an equally safe course open to him, namely to drive straight ahead or to swerve to the left in order to avoid the kangaroo. In crossing to the incorrect side of the roadway and at the same time failing to avoid collision with the kangaroo … [D] put himself in the position where he was likely to lose control of his vehicle … [and pose a danger to other traffic] … I do not think that … [P] at the time when … [D] came into view … would have been in a position to observe that there was anything untoward [up ahead] … The question remains whether, when the [P] was in a position when he saw or ought to have seen that the [D’s] vehicle was on the wrong side of the road and proceeding towards him, he should have taken some evasive action by swerving right or left. Again I am not convinced in the circumstances that to have taken one step rather than the other was the more reasonable choice … [P] might reasonably have assumed that to stay on his own correct side of the road was the safer course because he could expect that the [D] would continue to endeavour to get back to the western side of the road, and indeed the angle of … [D’s] vehicle would seem to indicate that that in fact was what … [D] was doing. It is possible that … [P] could have decided to swerve on to the gravel shoulder on the eastern side but to have failed to do so was not in all the circumstances, in my view, a failure to exercise reasonable care for his own safety” [3-4]. P not negligent. Terekia v Richard-Evans 5/3/86 [1986] ACTSC 11 Miles CJ


P (appellant) passenger was seriously injured when D’s car hit kangaroo which hopped in front of car. The accident occurred on a gravel road at a time when the D knew kangaroos were a serious hazard as he was well familiar with the road. The speed limit was 110 kph, but nevertheless the D’s speed of 80 kph in the circumstances was excessive. Evidence did not establish that the kangaroo was or should have been visible to D for any significant time period. D found to be negligent. Tyrrell v Griffiths 20/6/90 [1990] WASC Full Court [(1990) 11 MVR 418] not on austlii


“The closest ‘kangaroo’ warning sign was some eleven kilometres north of the accident site. That sign depicted a kangaroo but it was not accompanied by a distance board, provided for in Australian Standard 1742.2 … I am not satisfied that the failure to post a distance sign with the kangaroo sign was causative of the [P’s] accident [127]. I doubt that a sign warning of a continuing kangaroo hazard for eleven kilometres or more, whilst complying with the Standard, would of itself keep a motorist exercising reasonable care on alert for eleven kilometres. More importantly however, the [P] was born in Lismore and he grew up in northern New South Wales. The [P] said he knew it was possible to encounter a kangaroo on the Summerland Way, anywhere between Grafton and Lismore, and at any time … Hence, the display of a notice would not have contributed to his knowledge, and I am not satisfied that such display would have avoided this accident” [128]. Watt v Copmanhurst Shire Council 2/2/05 [2005] NSWSC 7 Studdert J see also Watt @ Skidding – Loose gravel for fuller precis


D was driving ute along country road at night at 120 kph whilst carrying P and another in back of ute with their backs to the cab. P was heavily intoxicated. D’s speed was not only in excess of the speed limit, but was such to prevent him taking evasive action should something appear on the road in front of him. He knew of the possibility of there being kangaroos on the road. D said he saw a kangaroo only 10 metres ahead of him on the road and so he swerved. This caused P to fall off, but not the other person . Evidence of passenger next to D suggested that D would have seen the kangaroo much earlier if he had been keeping a proper lookout as they saw it earlier on the edge of the road. Had D “seen the kangaroo earlier and been travelling at a reasonable speed … [he] ought to have been able to pass the kangaroo in such a way and at such a speed as to avoid the need to swerve in the way in which he did…” [37]. Court not “persuaded that the [P] was negligent in travelling in the back of the vehicle … There was no alternative if he wished to get home that evening [39]. … [P] was guilty of a failure to take reasonable care for his own safety by failing to maintain an adequate hold upon the vehicle so as to protect himself in the event of any sudden movements of it … No doubt his consumption of alcohol may have played a significant role in this” [40]. Apport. P=25% D=75%. Hunter v Shelly 14/10/05 [2005] QSC 289 Cullinane J