As a young lawyer one of the first cases that I ran involved a young pedestrian who was struck by a car in Marine Parade, Coolangatta after running out of the Coolangatta Hotel following an argument with her boyfriend. The young lady had consumed a number of alcoholic drinks leading up to her argument. She ran out on to the road between parked cars and was hit by the car roughly in the middle of the road (although there was some argument about this). It was mid afternoon on a fine day on the weekend. Perhaps assisted by an elderly driver who confirmed that he usually only looked straight ahead when he was driving and did not look at what was happening on the footpaths or on either side of the road, the presiding judge held that the apportionment of liability should be 70/30% in favour of the young lady who was struck by the car (i.e. her claim was reduced by 30% for her contributory negligence).
I recall at the time that there were many people who were surprised by the verdict but the Judge had only applied the law as it has been for motor vehicles and pedestrians for many years. The basic reasoning behind giving pedestrians right of way is that people in motor vehicles are much more dangerous and cause significant damage to an unprotected pedestrian when they collide. It therefore stands to reason that a driver of a motor vehicle should exercise a high degree of care when driving in the vicinity of pedestrians.
It is completely wrong to assume that pedestrians can only cross the road at pedestrian crossings (although this would mostly be the safest practice). The general law states that a driver of a vehicle must be very careful when in the vicinity of any pedestrians and particularly vigilant where they are driving through built-up areas or in places where it is more likely than not that pedestrians may cross in their path unexpectedly. For example, if you are driving along a busy road on a beachfront during the day when there are many children and families at the beach, it is more than likely that you may have young children or people coming out in front of you from the side of the road. Likewise, if you are passing a school or a hotel, you are on notice that there may well be pedestrians of different ages and levels of sobriety possibly crossing your path.
It has also been a vexed issue about pedestrians who are intoxicated and are run over by motorists. Two recent cases in the Qld Court of Appeal and the Qld Supreme Court have upheld claims by intoxicated pedestrians with differing outcomes. In the case of Allianz Australia Insurance Limited –v- Swainson, the Qld Court of Appeal recognised the contribution of the intoxicated person in that case but still held that the apportionment of liability was 40/60% in favour of the injured plaintiff. Although the plaintiff in that case only recovered 40% of his damages, his injuries were quite severe and it shows the level of responsibility that the court places upon drivers of motor vehicles (even where it is in the dark and an intoxicated pedestrian stumbles in front of the vehicle). The pedestrian in that case was hitch-hiking and walking along the side of the highway. The Judge held that the driver would have seen him in front of him for some time before the collision and should have anticipated him walking into the path of the car.
The second case of McAndrew –v- AAI Limited was a decision of the Supreme Court of Qld and involved a young man who was struck by a motorcycle in a country town in the early hours of the morning after attempting to cross the road. There was evidence that the injured plaintiff had been drinking from earlier in the evening for quite some time. However, the facts of that case were quite different where the rider of the motorcycle that struck him was travelling extremely fast and there was also independent evidence from a witness who stated that the plaintiff attempted to back away from being struck by the motorcycle but that it was travelling too fast in the circumstances. There was no apportionment made for any reduction for contributory negligence and the plaintiff succeeded 100%. The insurance company argued strongly that the injured plaintiff should have some reduction of liability due to the fact that he had been drinking for so long and the inference should have been that he was intoxicated and would not have crossed the road had he not been drinking. These submissions were rejected by the trial judge.
It is clear from the above cases and an examination of the law in relation to pedestrians that they indeed do have the right of way when it comes to motorists, even when they are intoxicated. While there is no rule of thumb that every intoxicated plaintiff will succeed in a claim for damages, many people believe that unless they are struck by a car on a pedestrian crossing, they cannot claim damages for personal injuries.
However, it is clear that all pedestrians have a very high duty of care owed to them by any motorists and if they are injured in any incident, they should be aware of the time limits for lodging a claim form with the relevant CTP insurance company of the vehicle at fault. In QLD, the claim form must be lodged within 1 month of seeing a lawyer or within 9 months of the accident date. In NSW, the claim form must be lodged within 6 months of the date of accident. After a claim form has been lodged and the claim accepted by the CTP insurer, the injured person can claim their treatment and out of pocket expenses from the insurance company.
There are exceptions to lodging the claims outside these time frames and there is usually a general 3 year limitation on lodging the forms. We suggest that any injured person obtain legal advice as soon as is practical and lodge claim forms as soon as possible.
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