With pedestrian and cyclist accidents involving serious injuries or fatalities on the rise, Compensation Law Senior Associate, Yasmine Chalvatzis looks at how the courts decide who is at fault in these cases and why a pedestrian or cyclist who may be partly responsible can still recover substantial compensation.
The Australian Institute of Health and Welfare reports that transport accidents were the third leading cause of injury hospitalisations in 2024-25, with 4,545 admissions involving pedestrians. The National Road Safety Data Hub says that 8,163 cyclists were hospitalised after road crashes in 2021 (the most recent data available), and that around 85 per cent of cyclist crash casualties involved another vehicle, most often a light vehicle.
When a pedestrian or a cyclist is injured by a vehicle, who is responsible and what happens if the injured person was partly to blame?
Drivers in Queensland owe a particularly high duty of care to pedestrians and cyclists. That duty extends well beyond marked crossings and designated bike lanes.
We’ve covered this duty of care and the road rules drivers must follow at slip lanes, one of the most misunderstood intersections for vulnerable road users, in a previous article.
This article looks at a different part of the puzzle. Once an accident has happened, how is fault actually divided up, and why does being partly responsible not necessarily mean a pedestrian or cyclist walks away with nothing?
A common misconception is that a pedestrian has a valid claim only if they were struck at a designated crossing.
In fact, drivers must exercise a high degree of care wherever pedestrians are likely to be present, including built-up areas, near hotels, near schools, and anywhere people might reasonably be expected to step into the road, even if this unexpected.
Not crossing at a designated road crossing does not automatically forfeit someone’s right to compensation if they have suffered an injury. To the contrary, most pedestrian cases involving being hit by vehicles happen on roadways not on a crossing and it is a matter of whether the driver should have anticipated the actions of the pedestrian in all of the circumstances.
One of our first cases: a lesson in how fault is really decided
One of the firm’s early compensation cases in the 1980s, run by our Legal Practice Director, Jeff Garrett, when he was a young lawyer just starting out, remains a clear illustration of how the courts approach this question.
The case involved a young woman who ran out onto Marine Parade in Coolangatta after an argument with her boyfriend outside the original Coolangatta Hotel. She had been drinking.
It was mid-afternoon on the weekend, and she was struck by a car roughly in the middle of the road. The driver, an elderly man, told the court he generally looked straight ahead while driving and did not pay close attention to the footpaths or either side of the road.
The judge apportioned liability 70/30 in the pedestrian’s favour, reducing her claim by 30 per cent for her contribution to the accident.
At the time, the outcome surprised plenty of people. The reasoning behind it, however, is consistent with the law.
Drivers are expected to anticipate that pedestrians may appear unexpectedly in places where they are foreseeable. And a strip like Marine Parade, lined with hotels, holidaymakers unfamiliar with the local roads, and beachgoers, is exactly that kind of place. Wet weather, school zones, and tourist precincts all raise the same expectation: a driver must account for them, not just for ideal conditions.
Contributory negligence works on a spectrum, and the outcome depends heavily on the specific facts.
In a 2011 Queensland Court of Appeal case, an intoxicated hitchhiking pedestrian still recovered 40 per cent of his damages, because the driver had him in view well before the collision. In a separate Supreme Court case, a man struck by a motorcycle after a night of drinking recovered 100 per cent of his damages, with no reduction at all, because the rider’s excessive speed was found to be the dominant cause of the collision.
Being partly at fault may reduce a payout. It does not eliminate a claim.
This isn’t unique to motor vehicle accidents, either. The same tactic shows up in WorkCover claims, where insurers allege a worker contributed to their own injury, and in public liability claims, where occupiers try to shift blame onto the injured person.
Cyclists face a newer, less understood risk: dooring
Cyclist numbers are rising in Brisbane, and so is exposure to another hazard called dooring, where a car door opens into the path of an oncoming cyclist or e-scooter rider with no time to react.
We recently discussed this issue in a radio interview on 4BC.
Anyone opening a car door, whether the driver or a passenger of a vehicle, must only do so if it is safe. A cyclist still carries a duty to keep a proper lookout and a safe distance, but on narrow streets with parked cars on both sides, the greater onus falls on the person opening the door.
Dooring applies to anyone injured by a car door that is flung open, whether they are on a bike, scooter, or electronic vehicle, or are a pedestrian (though that scenario is rarer).
The injuries can be serious, and some dooring incidents in Australia have been fatal.
A dooring claim runs through the same channel as any other motor vehicle accident claim. As long as a registered motor vehicle was involved, the injured cyclist, scooter rider, or pedestrian can pursue compensation through that vehicle’s Compulsory Third Party insurance.
Making a claim
When a pedestrian or cyclist is involved in a road accident, these aren’t always minor injuries. Pedestrians and cyclists have no protection from a vehicle’s mass. The resulting injuries can be catastrophic, from spinal damage and traumatic brain injury to permanent disability, often with months or years of rehabilitation and lost income to follow.
Compensation for pedestrians and cyclists injured by a motor vehicle, whether the accident involved a moving car, a parked car door, or a vehicle that failed to give way, is generally pursued through the at-fault driver’s CTP insurance. If the at-fault driver cannot be identified or was not insured, a claim can instead be lodged with the Nominal Defendant.
If you are involved in an incident, get to safety first, particularly if there is oncoming traffic. Make sure you get the vehicle details and the driver’s information. Report the incident to police as soon as possible and take photos of the scene if it is safe to do so.
Time limits for lodging a claim are strict.
In Queensland, a claim form must generally be lodged within one month of first seeing a lawyer, or within nine months of the accident date, whichever comes first, subject to limited exceptions.
In New South Wales, the limit is six months from the date of the accident. A general three-year limitation period applies to launch formal proceedings, but waiting that long risks losing access to early treatment and rehabilitation support.
If a pedestrian or cyclist tragically dies from their injuries, a dependency claim may also be available to their spouse, partner, or children for the financial support they have lost.
Nationally, pedestrian deaths rose 23.2 per cent and cyclist deaths rose 16.2 per cent in the 12 months to November 2025, according to Australian Automobile Association data. In Queensland, the increase among cyclists was sharper still, with deaths up 62.5 per cent over the 2025 calendar year.
The biggest mistake people make after these accidents is to assume that some degree of personal responsibility rules out a claim altogether. In most cases, it doesn’t.
Attwood Marshall Lawyers – helping people injured in motor vehicle accidents for over 80 years
Insurers don’t make these claims easy. Having an experienced lawyer on your side from the outset makes a real difference, and it’s worth persisting rather than accepting an insurer’s first response.
We act on a No Win, No Fee basis for motor vehicle accident and dependency claims, so you can find out where you stand and get your claim underway at no upfront cost.
To discuss our compensation law services, please get in touch with Department Manager Tyra Hanson on direct line 07 5506 8261, email thanson@attwoodmarshall.com.au, or free call 1800 621 071.
Our experienced team are available for appointments at any of our conveniently located offices at Robina Town Centre, Coolangatta, Southport, Kingscliff, Brisbane, Sydney, and Melbourne.
