Car & Road Injuries

Pedestrian v Motorist: What You Need to Know

November 2, 2021
Pedestrian v Motorist

Accidents involving motorists and pedestrians in Queensland are seemingly on the rise with recent data showing pedestrian fatalities were up by 77% in 2020 when compared with the previous year.

Pedestrians are a vulnerable road user; they aren’t protected by seat belts and airbags like people in vehicles are.

And more often than not, when crashes between the two happen, the pedestrian’s injuries are likely to be more severe with potential head trauma, internal or spinal cord injuries, fractures, and even death.

But the question that remains in situations like this is: who is at fault?

Lack of understanding of pedestrian road rules

Just last year, 34 pedestrians were killed and 153 were hospitalised with serious injures because of traffic crashes in Queensland.

Studies show crashes involving pedestrians are most likely to occur when the pedestrian is crossing the road, which is where the lines seem to blur when it comes to knowing the relevant priority rules.

For example, a particular situation that appears problematic is when drivers turn into a road where there is no marked crossing or signal, but pedestrians are crossing (or waiting to cross) the road anyway – who has the right of way?

Well, it is true that allocated crossings aren’t the only time drivers need to give way to pedestrians, despite what many think.

Fact: Pedestrians represented nearly 13% of fatalities from all road deaths nationwide in 2020.

Vehicles must give way to pedestrians no matter what

The first thing to bear in mind is that vehicles are considered weapons and drivers have a legal obligation to operate them with due care.

Part of this duty includes foreseeing that pedestrians may break the law and cross the road unexpectedly (like jaywalking).

In act, the law holds that anyone behind the wheel must give way to pedestrians whenever there is a danger of colliding with a pedestrian (even when there’s no marked crossing), including when:

·      Making a U-turn

·      Turning off or into an intersection

·      In a slip lane or shared zone

·      Approaching marked crossings

·      On footpaths and driveways

·      At give way or stop signs

Having said that, in rare cases, pedestrians can be partially or wholly to blame too. What if they’re intoxicated? Or texting or on a call and not watching what’s happening around them?

Fact: In the Transport Operations (Road Use Management – Road Rules) Regulation 2009, a pedestrian “includes a person who is using a personal mobility device” in most cases.

Determining fault in a pedestrian v car accident

If a pedestrian has been hit and injured by a car, eligibility for compensation, the amount and how smooth the process is, depends on where the fault lies.

If there’s no dispute as to who caused the accident, the process is generally quicker. Where there are uncertainties however, it can become more complex.

So, when determining liability, the more information and evidence you have(including photos, police reports and witness statements), the better.

Things that are usually taken into consideration can include:

·      Was the driver speeding, intoxicated, or distracted?

·      Was the driver allowed to drive? Were they licenced?

·      Where did the accident occur?

·      Did the pedestrian have right of way?

·      Was the pedestrian breaking any laws?

·      Was the pedestrian intoxicated, or distracted?

If the evidence proves there was almost no way the driver could have seen the pedestrian, or it was too late to stop, or the pedestrian was partly at fault, the blame may be shared – in which case, while the driver’s insurance may still be liable to pay damages, it’ll be less because of the pedestrian’s contributory negligence.

It’s rare for the pedestrian to absorb the majority of the blame, but it’s not impossible as seen in Allianz Australia Insurance v Glenn Swainson where the pedestrian was intoxicated and walking on the side of the road with their back to oncoming cars.

Fact: More than 30 per cent of pedestrians killed on Queensland roads had 0.05 blood alcohol readings.

Know your rights in a pedestrian v car accident

A pedestrian injury resulting from a car accident can be life changing. From loss of income to medical costs and other out of pocket expenses, your financial situation can be hit just as hard as your physical health.

Our client, Kathy, knows this all too well after she was hit by a car at 70km/hr while crossing the road.

If you’re hit and injured as a pedestrian due to in any part the fault of a moto vehicle like a car, ute, truck, motorcycle, you may be able to claim compensation through their CTP insurance which covers loss of income, medical treatment and rehab.

Fact: Nearly 4,000 claims for injuries were made by pedestrians in 10 years from 2010. That’s more than one a day.

Tips for drivers or riders when it comes to pedestrians

·      Reduce speed around entertainment venues where people gather

·      Travel carefully around schools and playgrounds

·      Allow more time for a person with a disability, or a senior pedestrian to cross

·      Travel at a speed allowing you to stop safety at a crossing

Tips for pedestrians when it comes to walking near roads

·      Cross roads, railway and tram tracks at designated crossings

·      Stay alert when wearing headphones and using a mobile phone

·      If there’s no footpath or nature strip, walk so you’re facing oncoming traffic

·      Be cautious of traffic near crests and curves

·      Never assume a driver has seen you

Profile Picture of Peta Miller

A finalist for the Women Lawyers Association of Queensland's (WLAQ) Emergent Woman Lawyer of the Year in 2017 and Solicitor for the past seven years, Peta has worked exclusively in compensation law for 6 of those years.

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Disclaimer: This information is designed for general information in relation to Queensland compensation law. It does not constitute legal advice. We strongly recommend you seek legal advice in regards to your specific situation.

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