In simple terms, to be eligible to claim compensation after a motor vehicle accident, you need to be able to show that the other driver was negligent, and that this negligence caused your injuries. As a result, injured pedestrians who feel that they were partially at fault for an accident often won’t pursue a claim. However, pedestrians who a hit by a car may still have a claim, even if they were on the road or not using a pedestrian crossing.

Drivers’ Duty of Care

While pedestrians are obviously required to obey the road rules, drivers owe a very high duty of care to all road users, and particularly to pedestrians. A car is a lethal weapon for an unprotected pedestrian and a careless driver can leave a pedestrian with life changing injuries or worse. Drivers must therefore always be aware of their surroundings and keep a proper lookout for pedestrians behaving unexpectedly, jaywalking, or even drunkenly stumbling into the road.

The duty owed by drivers is even higher in certain situations, such as in busy pedestrian areas, or where children may be present. A responsible driver needs to be constantly scanning the area for pedestrians and be ready to take reasonable steps to avoid an accident, if required.

Contributory Negligence

While a pedestrian who crosses a road without using a pedestrian crossing may not recover 100% of the damages they would otherwise be entitled to, the courts will consider each individual set of facts and make a percentage reduction to their damages for “contributory negligence”, if necessary. However, if a pedestrian has suffered severe injuries, they may still have a viable claim even if they were mostly at fault for the accident. Although there are some limited circumstances where a pedestrian may lose a claim entirely, these are usually in circumstances where there was nothing the driver could have done to avoid the accident.

Generally, pedestrians will either win their claims and be awarded 100% of their compensation, or win their claim but be awarded a reduced about of compensation in line with their own contribution to the accident. It is very rare that drivers are not found liable at all for a pedestrian accident.

It is relevant to consider questions such as whether the driver was speeding or distracted, whether the driver should have seen the pedestrian ahead and started breaking, how far the pedestrian had walked into the road before being hit, or whether the pedestrian was crossing in a dangerous area. As each case is different, it is essential to seek advice from an experienced personal injury lawyer if you are injured as a pedestrian.

Pedestrian Case Law

Looking at previous court decisions can provide a useful guide to the types of issues the court may consider in these types of claims.

For example, in the decision of Pennington v Norris (1956) 96 CLR 10, the plaintiff crossed a busy road at night without properly checking for traffic. While the court noted that he showed disregard for his own safety, it found that the driver had failed to keep a proper lookout for pedestrians and was speeding in a populated area on a wet and misty night. As a result, the court found the driver was 80% liable for the accident, with the plaintiff contributing 20% to the cause of the accident.

Another example is Manley v Alexander [2005] 55 MVR; [2005] HCA 79. In this case, a driver hit a pedestrian who was lying in the middle of the road, after taking his eyes off the road to look at the pedestrian’s friend on the side of the road. The court found that the driver had failed to pay reasonable attention to “all that was happening on the road” and therefore held 30% of the blame for the accident. The injured pedestrian was therefore found to have contributed to the accident by 70%, and recovered 30% of the full damages they would otherwise have been entitled to.

In the more recent decision of Walker v Smith [2022] VSC 188, the plaintiff was hit when walking home from a hotel while intoxicated. Although the plaintiff claimed that he was walking on the side of the road, the judge found that he was walking on the bitumen in the eastbound lane. He was wearing dark clothing, and the lighting was poor. Despite this, the court found that the driver was 30% to blame for the accident, as had not been keeping a proper lookout. Although the driver saw the pedestrian and swerved at the last moment, the court determined that if he had been paying sufficient attention, he would have seen the pedestrian in time to avoid a collision.

In another recent Victorian case, Singh v Ward [2022] VSC 155, a pedestrian was struck at high speed after stopping and getting out of his car in the emergency lane because his two year old daughter would not stop crying. At trial arguments were made over whether the plaintiff had stopped in a safe place, and whether the driver had driven into the emergency lane, rather than the plaintiff stepping out onto the highway. The judge noted that the continuous crying of the baby was a valid reason to have stopped, given that it would have been distracting for the driver. However, they also found that it would have been reasonable for the plaintiff to have stopped further up the road where there was more space between him and the passing traffic. As a result, although the driver was primarily liable for the accident, having lost concentration and driven into the emergency lane, the plaintiff lost 10% of his damages for stopping in an unsafe location and failing to take reasonable care for his own safety.

As the case law demonstrates, the facts of each case are different. However, even if a pedestrian significantly contributed to an accident, they are rarely found to be 100% to blame. Considering the severity of injuries often suffered by pedestrians, damages claims can be substantial, even when there is a finding of contributory negligence.

If you have been involved in a motor vehicle accident, it is important to seek advice from an experienced personal injury lawyer. There are strict timeframes that apply to motor vehicle accident claims, so please do not hesitate to contact Littles Lawyers for a free initial consultation.

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