Pedestrian VS Motorist - Who Is At Fault?

March 7, 2018


Car & Road Injuries


Tolu Ajiboye


Accidents involving motorists and pedestrians are common and are seemingly on the rise, not just in Australia but in other countries around the world. Just last year 64 pedestrians were involved in fatal accidents. When this sort of thing happens, the pedestrian, who is usually the most severely injured party, usually seeks compensation from the driver. The question when the court is determining how much pedestrian injury compensation to award to is: Who is at fault?

We’ve all heard and know that generally, pedestrians have the right of way, and while this is mostly true, there are certainly some instances when it may not be your driving at fault- in fact, sometimes the pedestrian could be partially or wholly at fault too.

Let's take a look at some situations and figure out whose side the law will likely be on.

I hit a pedestrian who was jaywalking

Jaywalking pedestrian holding a coffee and looking at his phone

Say you’re driving within the prescribed speed limits and a pedestrian decides to cross the road illegally without any regard for the oncoming traffic. As a result of this, you accidentally hit them and they sustain injuries, who’s at fault?

The first thing to bear in mind is that you as a driver have a duty of care to avoid colliding with pedestrians, and part of this duty of care includes anticipating that pedestrians may break the law or cross the road unexpectedly.

The Australian Road Rules also state that “You must also give way to pedestrians if there is a danger of colliding with them, even if there is no marked pedestrian crossing.”

Having said that, in rare cases, it may be decided that the pedestrian is partially (and much rarer, wholly) to blame too. For example, if the evidence and witness statements prove that there was almost no way you could have seen the pedestrian before they crossed or it was practically too late for you to stop, all the blame may not lie on you. So while you may still be liable to pay damages for injuries sustained, it’ll be less than it normally would have been because of the pedestrian’s contributory negligence.

I hit an intoxicated pedestrian on the road

Happy drunk pedestrians crossing the road

If a pedestrian is drunk, crosses the road the carelessly and you mistakenly collide with them, chances are that the court will share the blame between you two. In fact, the pedestrian may even get the bigger share of the blame as with what happened in Allianz Australia Insurance Ltd v Glenn Swainson. In this case, it was late out, the pedestrian was intoxicated and walking on the side of the road while backing oncoming cars. The court decided that the pedestrian was more at fault for the accident than the driver and that his contributory negligence was 60%.

So in summary, for situations involving intoxication, the percentage of negligence you are responsible for is determined on a case by case basis, after all the relevant evidence has been examined.

I hit a pedestrian who was texting and not looking

Lady pushes pedestrian crossing button with phone

Almost everyone has a mobile phone, and it’s not odd to see pedestrians with their faces turned downwards and texting furiously as they walk on the roads. This makes them super-distracted while crossing and not as aware of vehicles as they should be. Right now, many countries around the world -including Australia- are looking for a solution to this problem that has increased the number of pedestrian-vehicle accidents everywhere.

But for now, while it persists, the high duty of care you as a driver have is still in play. So if you collide with a pedestrian whether solely or partly because they were texting, legally you could still be at fault.

How does the court decide who is at fault?

The most common types of evidence that the court takes into consideration in these kinds of accidents are, police reports and witness statements. Dash cam footage is also proving quite useful in road accident cases.

Also questions like;

Am I covered?

The next thing you’ll be wondering is how you’re expected to pay damages to a pedestrian injured in a road accident. Fortunately, this is something covered by your Comprehensive Third Party (CTP) cover through your registration. It is your insurance policy that provides compensation to people injured or killed in motor accidents you’re involved in and you’re legally required to have it as a motorist in Australia.

Nobody ever wishes for or expects to get into an accident with a pedestrian- or any accident at all-, nevertheless it’s important to know what the court will likely hold if one occurs. And it, in a nutshell, is that you as the driver will almost always bear some, if not all of the fault. You can best protect yourself by keeping in mind that you have a high duty of care while driving, so make sure you are always vigilant and free of distractions.

Tolu Ajiboye

Tolu Ajiboye is a contributor to the Smith's Lawyers blog for topics including injury recovery and mental health. Her work has been published by The Guardian, NBC News, Health Magazine and Entrepreneur Magazine.

Tolu Ajiboye is a contributor to the Smith's Lawyers blog for topics including injury recovery and mental health. Her work has been published by The Guardian, NBC News, Health Magazine and Entrepreneur Magazine.