Drivers of vehicles on our roads owe an especially high duty of care to pedestrians to ensure they are not exposed to serious injuries or death in a preventable motor vehicle accident. Tina Davis, Compensation Law Senior Associate at Attwood Marshall Lawyers, looks at some recent cases demonstrating the very high standard of care owed by drivers of vehicles to pedestrians.
When considering pedestrian compensation claims, the starting point is obvious: Pedestrians are unprotected and especially vulnerable compared to drivers of cars, trucks, buses, and other vehicles, which are a potential lethal weapon when compared to the unprotected pedestrian. Pedestrians are far more likely to suffer serious injuries or death in a vehicle-versus-pedestrian accident. What hope does a pedestrian have against a 2-tonne metallic machine careening toward them at high speed? The safety imbalance between drivers and pedestrians is extraordinary.
Vehicles are seen as weapons and accidents involving unsafe, careless, or negligent driving routinely cause dire outcomes for pedestrians who are often left with serious or catastrophic injuries, or worse! Drivers must be especially vigilant in considering pedestrian safety by operating their vehicles with due care, scanning for and giving way to pedestrians, and slowing their vehicles in areas where there is greater risk of collision – including pedestrian crossings, footpaths, driveways, roundabouts, or traffic intersections. Drivers must even be wary to look out for pedestrians in unexpected circumstances such as pedestrians crossing highways, jaywalking, or drunkenly stumbling out onto the road.
The colloquial “golden rule” in pedestrian compensation claims has always been “the pedestrian always wins!” Many pedestrians feel they are partially at fault and don’t pursue a claim, but the reality is that most cases will have good prospects, except perhaps where the pedestrian has run out in front of a car without the driver having any chance of stopping or avoiding the collision. However, the circumstances of each accident are usually different, and it pays to get some advice from an experienced compensation lawyer as soon as you are able. If the injuries are severe, even a pedestrian mostly at fault may still have a viable claim.
A driver’s duty of care
The duty of care imposed upon the driver in a driver-versus-pedestrian scenario is onerously high. In most cases, accidents involving pedestrians occur in circumstances where the driver of a vehicle could (and should) have taken reasonable steps to avoid the accident. In many cases, the driver is found liable for the accident and their CTP insurer is required to pay the pedestrian compensation.
There are limited circumstances where the pedestrian will lose their case, including when the pedestrian suddenly and unexpectedly darts out in front of a vehicle in circumstances where there is nothing the driver could have done to prevent the accident.
In many cases, the driver will be found liable in causing the accident, but the value of the pedestrian’s claim is reduced by a percentage for the pedestrian’s “contributory negligence”. This may occur where, for example, a pedestrian crosses the road at a non-pedestrian crossing in dark clothes at night but is hit by a car that should have seen the pedestrian in its headlights from 50+ metres away and slowed down in time.
Overall, pedestrians will usually either win their claims outright and be awarded full compensation, or otherwise win their claim but be awarded a reduced figure of compensation commensurate with their own culpability in contributing to the accident. Accidents where the driver is not found liable at all are not as common.
Each case will turn on the specific circumstances of how the accident occurred. For example, was the driver speeding, distracted, or intoxicated? Was the pedestrian crossing in a dangerous area or against a “do not walk” signal? Which party had right of way? Should the driver have seen the pedestrian up ahead and started braking? How far out onto the road had the pedestrian walked before being hit by the vehicle? There are countless variables that affect the culpability of each party in a vehicle-versus-pedestrian accident.
Here are several recent cases that discuss similar issues:
Walker v Smith  VSC 188
In this case, heard at the Supreme Court of Victoria, a man was hit by a car while walking home from a hotel, suffering injuries to his ankle, right shoulder, and arm.
Even though the pedestrian was intoxicated and held 70 per cent liable for the incident, the driver was found 30 per cent to blame as the court determined he should have seen the pedestrian on the road with enough time to avoid the collision.
The judge determined that the plaintiff, who had imbibed 16 pots of beer over the course of an afternoon and evening, had been walking on the bitumen in the eastbound laneway and not along the edge of the road as claimed.
The streetlamps were dull, and he had been wearing black clothing with his back to incoming traffic. The defendant driver meanwhile was traveling at 60km per hour, with no “competing distraction,” his headlights on high beam and no traffic behind him.
The driver had argued that he only saw the pedestrian at the last moment and instinctively swerved to try and avoid him, with no time to brake.
The judge found that the driver had not been keeping a proper lookout on the road ahead immediately prior to the collision. If he had, he would have had enough time to slow down and swerve to avoid the collision. The plaintiff was “struck a glancing blow” by the vehicle as it passed, so the swerve did help. However, the collision could have been avoided entirely if the driver had been keeping “a proper lookout” and observed the man about 50 metres away, considering the speed he had been driving, the judge said.
Singh v Ward  VSC 155
In this Victorian case, a high-speed vehicle hit a pedestrian who had used an emergency lane to get out of his car and switch seats with a passenger.
The plaintiff had pulled over at a point where there was a gentle sweeping bend to the right because his two-year-old daughter had become unsettled and would not stop crying.
At the heart of the dispute was whether the plaintiff had stopped at a safe place, and whether the defendant driver had errantly crossed into the emergency lane or had the plaintiff stepped out onto the northbound lane of the highway.
The judge noted that the plaintiff’s baby was “continuously crying and shouting” for a significant period, which would have been distracting for the driver and therefore a valid reason under the road rules to stop in the interests of safety.
However, it would have been reasonably convenient for the plaintiff to have stopped at a safer place further up the road to ensure more space between him and moving vehicles, so he was found contributorily negligent. The key message to drivers who use an emergency lane is to be careful where you stop. If you are close to an area where you could pull over further or completely off the road onto the nature strip, drive to that spot before getting out of the car.
That said, the defendant, who was traveling at 100km per hour, was found to have lost concentration and driven into the emergency lane before striking the plaintiff.
It was therefore the driver’s lack of care that caused the incident and the plaintiff’s injuries. The judge said that the defendant’s “deviation from the standard of care required, and the casual potency of his breach, far outweighed” the plaintiff’s failure to take reasonable care for his own safety. The driver was found liable with only a 10 per cent reduction due to the plaintiff’s own negligence.
Other significant historic cases
In 2005, the case of Manley v Alexander  55 MVR 308;  HCA 79 played out in the High Court of Australia and concluded that a driver had failed to give reasonable attention to “all that was happening on the road” when he hit a pedestrian who had been lying in the middle of the street. The driver had taken his eyes off the road to watch the pedestrian’s friend on the side of the road, and so the judge slapped him with 30 per cent of the blame.
In 1956, the case of Pennington v Norris BC 5600510 saw a plaintiff held partially accountable for crossing a busy road at night without looking properly for cars and showing a disregard for his own safety. The court found that the driver was culpable to a far higher degree because he had not kept a proper lookout for pedestrians and had been speeding through a populated area. It was also a misty night, and the roads were wet due to rain earlier in the evening. In that historic case, the driver was found 80 per cent negligent and the plaintiff, who had no recollection of the incident, was 20 per cent to blame.
Attwood Marshall Lawyers – helping people injured in motor vehicle accidents for over 75 years
If you have been involved in a motor vehicle accident, it is important to get trusted legal advice from an experienced compensation lawyer at the earliest opportunity. Strict timeframes apply in motor vehicle accident claims and although you may not realise the extent of your injuries early on, if you wait too long to make a claim, you may lose your right to entitlements altogether.
We take on all motor vehicle accident claims on a No Win, No Fee basis. What this means is that you can discuss your matter with a compensation lawyer, find out where you stand, and get your claim underway with no upfront costs.
For more information, please contact our Compensation Law Department on 1800 621 071 for a free claim review.
Our experienced team are available for appointments at any of our conveniently located offices at Robina Town Centre, Coolangatta, Kingscliff, Brisbane, Sydney and Melbourne.