The matter required the parties and, ultimately, the Court of Appeal to analyse a seemingly straightforward piece of legislation, being Section 238(2) of the Transport Operations (Road Use Management – Road Rules) Regulations 2009. Section 238(2) states that pedestrians:

“(a) Must keep as far to the left or right side of the road as is practicable; and

“(ab) must, when moving forward, face approaching traffic that is moving in the direction opposite to which the pedestrian is travelling, unless it is impracticable to do so.”

Years of convention and, we assume, the rules of the road tell us that, as pedestrians, should we need to walk along the roadway (i.e. on a rural road or a road with no pathways), we should walk along the same side as, and facing, oncoming traffic. Assuming oncoming traffic will be on the left side of the road in relation to its direction of travel, my understanding has always been that I should walk along the right side of the road in relation to my direction of travel. It is apparent that Allianz understood similarly.

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Before reading on, I’d like to challenge you to read (and re-read) section 238(2). Now, putting confirmation bias (the tendency to interpret new evidence as confirmation of one’s existing beliefs or theories) to one side, what does the regulation actually say?

Now, turning to the facts of the case:

Having consumed a few beers, Mr Eden set off on foot along a rural road, without artificial lighting, just after sunset. He was wearing a T-shirt with a white motif on the back and was carrying a white plastic bag (with more beers in it), which the court was of the view should have made him visible. Mr Eden was walking on the west, or left side of the bitumen road in relation to his direction of travel, about 50cm in from the edge of the road. The road was long and straight, and Mr Eden ought to have been visible from a distance to vehicles travelling in both directions. He was walking along this side of the road as he was aware there was a large ditch on the eastern, or right side of the road in relation to his direction of travel, which was unsafe. Somewhat contradictory to that, he also gave evidence that he intended to cross to the right side of the road; however, he observed two bright lights approaching on the opposite side of the road and in the opposite direction of travel, so he decided to continue proceeding down the road on the left-hand side. Before the two lights had reached Mr Eden (which turned out to be two cyclists), Mr Eden was struck in the back by the wing mirror of a car travelling on the same side of the road as Mr Eden and in the same direction of travel.

The negligence of the driver was not contested on appeal; however, Allianz argued that Mr Eden was contributory negligent, as section 238(2)(ab) meant that a pedestrian should walk along the roadway so that they were on the same side as, and facing, oncoming traffic. That is, that Mr Eden ought to have been walking on the east side, or right side of the road in relation to his direction of travel. A strong and logical argument, right?

Not according to the Court of Appeal. The court looked at section 238(2(ab) and noted that it is totally silent in relation to the side of the road a pedestrian must walk. It simply says that a pedestrian:

“must, when moving forward, face approaching traffic that is moving in the direction opposite to which the pedestrian is travelling, unless it is impracticable to do so.”

It is exactly what Mr Eden did. He was facing approaching traffic (the bicycles) which were moving in the direction opposite to which he was travelling.

The court, ultimately, decided that Mr Eden was not contributorily negligent as it was impracticable for him to walk on the right side of the road by reason of the large drain on that side, so did not have to decide the point in relation to section 238(2)(ab), however, remarked that “regulation 238(2)(ab) is poorly worded” and “perhaps the legislature should give consideration to making the provision at reg 238(2)(ab) clearer”.

Allianz and its legal team grappled with the above piece of legislation and ultimately made the decision to roll the dice and embark on the very costly and time-consuming journey of defending the claim at trial and ultimately running an appeal on the interpretation of section 238(2), among other issues.

Reading the judgment, rather than leading me to draw any criticism on Allianz or its legal team, left me pondering more broadly as to the possible role of unconscious or confirmation biases in our thinking, and ultimately our decision making as lawyers. Hindsight is 20/20 vision; however, what role might years of convention and a misapprehension of s238(2) play in interpreting a poorly worded but, (in a literal sense) relatively straightforward piece of legislation?

Personal Injury law and litigation, generally, can be inherently fractious and always adversarial. Eden illustrates, to me, the importance of identifying, acknowledging and critically analysing unconscious or confirmation biases in our decision-making process.

Interestingly, this regulation has not yet been amended, so, if you have a client who was injured walking along the “wrong” side of the road, you might want to consider challenging the convention.

John Connellan is a senior associate at Travis Schultz & Partners.