Hit a Pedestrian Whilst Driving

[hillwalker2004]

Hello - first post so apologies if its in the wrong place!

 

My partner was involved in a car accident where she hit a pedestrian. Without going into the finer points there were three witnesses, all of whom support my partner stating that he just walked out on her and that there was nothing she could do. Essentially there were three lanes of traffic two of which were gridlocked, he weaved between the the first two lanes but didnt realise the third lane was still moving and walked straight out into the lane without looking.

 

We also had the police come round to take photographs of the car who also confirmed that it was a low speed accident - about 20mph in his opinion. The only damage was the windscreen which was smashed, but the rest of the car was fine. The gentleman was not so lucky, more so as he was 70 - a fractured leg, minor head injury, and possibly some spinal issues although we dont know whether that is just precautionary.

 

My partner has just paid £70 excess to replace the windscreen and the insurers are not counting it as a claim as the moment as there is no damage to the car itself (so she doesnt need to pay the full excess). However she is worried that in this day and age we will be faced with a personal injury claim.

 

I was wondering whether there is anything preventing us from claiming the excess back from the gentleman plus costs of the recovery (could be up to £180). My partner was also going onto a course that day which was another £100 plus other indirect costs.

 

I am prepared to write this off and just put it down to one of those things even though all the evidence points to his negligence. I am just a bit concerned that if a speculative injury claim comes in we could be put into a weaker position by not claiming first. The alternative is to claim against him personally but is that just callous?

[Mossycat]

I think you are right to be cautious about this.

 

From what you have described the accident was clearly the fault of the pedestrian, and as such you can claim any monies you have paid out from him. I agree it does seem a bit callous, but on the other hand, as you quite rightly point out what if he then makes a claim against you no doubt through one of the many 'Had an accident we'll get you compensation' type companies.

 

I would be tempted to wait and see if that happens, and at that stage I would launch a counter claim, it doesn't make your position weaker by not launching a pre-emptive strike (in some cases that could trigger a counter claim from him).

 

Should any claim be launched against you then your insurers will deal with it, and for it to be successful they would have to show you were negligent, which from your OP would be very difficult for them to prove.

 

At the end of the day it's your call and without a crystal ball it's difficult to know what to do for the best

 

Mossy

[JonCris]

Don't be too sure your partners completely 'innocent' as there may be other factors which may contribute to there negligence

 

eg was their a public footpath adjacent was it a built up area had other pedestrians already crossed the road. In otherwords is there any evidence whatsoever that pedestrians might emerge from between vehicles If so 'extreme' caution should have been exercised

 

Remember in the eyes of the law the principal road user IS the pedestrian

[hillwalker2004]

Don't be too sure your partners completely 'innocent' as there may be other factors which may contribute to there negligence

 

eg was their a public footpath adjacent was it a built up area had other pedestrians already crossed the road. In otherwords is there any evidence whatsoever that pedestrians might emerge from between vehicles If so 'extreme' caution should have been exercised

 

Remember in the eyes of the law the principal road user IS the pedestrian

 

 

Mossy - thanks my view too is to leave it unless he claims.

 

Jon - Was a footpath either side so you wouldnt expect a pedestrian to cross there any more than anywhere else. It is a known busy road which is why there is a designated crossing a few tens of metres away.

 

I take your point though but if someone walks out in front of the car about 5 metres ahead of you there is very little you can do in those circumstances. Thankfully there are three witnesses who all say the same thing.

 

I'm not sure I agree with you that in the eyes of the law the principal (guess it depends what you mean by principal!) road user is the pedestrian, but in any case I believe the law states it is assumed that the vehicle driver is in the right and is up to the claimant to prove negligence, not the other way round.

[JonCris]

The law DOES recognize the pedestrian as the principal road user A pedestrian can go virtually anywhere including the wrong way up a one way street etc. That said it doesn't matter what the 3 witnesses say as like most here they don't understand. If there was the possibility that a pedestrian might appear from between the stationary traffic then the driver should have been traveling at such a speed that a collision would have been avoided. This seems unlikely as the pedestrian impacted the windscreen causing damage which suggests the driver was traveling to fast for the traffic conditions. you can try suing the pedestrian but I doubt you'll be successful In fact if I had a choice of representing either party it would be the pedestrian & NOT the driver

[Mossycat]

As a motor claims handler I'd take a different opinion.

 

Where a pedestrian has come from the offside (on a two way street regardless of number of lanes) I tend to favour the pedestrian and feel the motorist should have seen them, however in this instance the pedestrian came from the nearside and cut through two lanes of stationary traffic, that traffic could have started moving at any minute so the onus is on the pedestrian to exercise more care, especially since he had a third lane of traffic to negotiate. Additionally, there was a pedestrian crossing not too far from the accident scene, this was ignored by the pedestrian.

 

Whilst I accept that there is also a duty of care on the driver, I feel that the low speed involved in this accident does show that the OP was driving according to prevailing road conditions and could hardly anticipate a pedestrain emerging from a line of stationery traffic.

 

If this landed on my desk I'd fight for the motorist in this one

 

Mossy

[reorete]

The gentleman was not so lucky, more so as he was 70 - a fractured leg, minor head injury, and possibly some spinal issues although we dont know whether that is just precautionary.

lmao and you want him to pay the excess?

[JonCris]

Mossy I suspect you would lose particularly as the extent of the damage broken windscreen etc does not indicate a slow enough speed for the circumstances. The driver should have been prepared for just such an event pedestrians emerging from between stationary traffic

[JonCris]

The gentleman was not so lucky, more so as he was 70 - a fractured leg, minor head injury, and possibly some spinal issues although we dont know whether that is just precautionary.

lmao and you want him to pay the excess?

 

Don't worry & although there may be some contributory negligence on his part the pedestrian will almost certainly be suing the motorist for what might be a substantial sum of money

[pompeyfaith]

having been on a course to avoid a fine and points 4 doing 36 in a 30 which i may add was well worth the £72 i can confirm the padestrian is the principal road user

[reorete]

We also had the police come round to take photographs of the car who also confirmed that it was a low speed accident - about 20mph in his opinion. The only damage was the windscreen which was smashed, but the rest of the car was fine. ??????? seems to me your more concerned with the car damage. to me the damage shows that it wasnt a low speed crash. i feel sorry for the old man . and to add insult to injury you want him to pay the excess. disgracefull i say

[pompeyfaith]

the gentleman must have hit the screen at quite some force 4 it to smash

[Mossycat]

If it hadn't been a pedestrian (who had ignored a pedestrian crossing and had chosen to walk out from a line of stationary traffic into the path of a vehicle) and had been another driver emerging from a side road then we wouldn't be having a discussion about recovering excess.

 

Negligence is negligence whether behind the wheel or on foot, and the OP was merely using this forum to ask what his options were. If you read the posts fully you will note the OP has stated he will wait to see if a claim is made against him before he launches a claim for the losses he suffered, which incidentally he wouldn't have had the pedestrian not done what he did.

 

Injuries sustained are unfortunate but do not negate the facts of the case.

 

Mossy

[hillwalker2004]

The law DOES recognize the pedestrian as the principal road user A pedestrian can go virtually anywhere including the wrong way up a one way street etc. That said it doesn't matter what the 3 witnesses say as like most here they don't understand. If there was the possibility that a pedestrian might appear from between the stationary traffic then the driver should have been traveling at such a speed that a collision would have been avoided. This seems unlikely as the pedestrian impacted the windscreen causing damage which suggests the driver was traveling to fast for the traffic conditions. you can try suing the pedestrian but I doubt you'll be successful In fact if I had a choice of representing either party it would be the pedestrian & NOT the driver

 

I didnt want to mention earlier but one of the witnesses was an off duty police officer so I think their statement would be more accurate than most! Re speed its a difficult one, it seems that had the speed been 10 mph then the accident would have still occured. I think a deal of pragmatism is required, as for instance I can run a half marathon faster than 10mph which would render the car useless!

[hillwalker2004]

The gentleman was not so lucky, more so as he was 70 - a fractured leg, minor head injury, and possibly some spinal issues although we dont know whether that is just precautionary.

lmao and you want him to pay the excess?

 

correct. If culpability is proven then I dont see the injury as being relevant. That said I will only follow this up if he makes a claim first.

[hillwalker2004]

the gentleman must have hit the screen at quite some force 4 it to smash

 

Depends what you mean by smash - I dont mean into pieces. Just lots of cracks. I was told by the collision investigation unit that if he was hit at 30mph plus then he would have been flipped the other side of the vehicle.

 

Apparantly even at 10 mph you would be flipped onto the windscreen. We may agree to differ on the term excessive speed!

[hillwalker2004]

We also had the police come round to take photographs of the car who also confirmed that it was a low speed accident - about 20mph in his opinion. The only damage was the windscreen which was smashed, but the rest of the car was fine. ??????? seems to me your more concerned with the car damage. to me the damage shows that it wasnt a low speed crash. i feel sorry for the old man . and to add insult to injury you want him to pay the excess. disgracefull i say

 

 

I think you and one or two others need to read the original post more carefully! If the concensus is that its up to the driver in 99% of cases as I get the feeling here then quite simply if I fancy a quick buck it would just be advantageous to throw yourself in front of a car as its never the pedestrians fault!

 

The post now is irrelevant anyway - I have been informed that case law these days presents a simple test. What would have happened had the car been travelling at e.g. 5mph, would the accident still have occured? I have also been told that in this instance the pedestrian has ignored the highway code which although in itself is not law it is referred to in the traffic act. Simply put a pedestrian should use a designated crossing point where one exists. If you decide to cross you should do so where drivers are in a position to see you and should avoid crossing between parked cars. Finally Parked vehicles. If you have to cross between parked vehicles, use the outside edges of the vehicles as if they were the kerb. Stop there and make sure you can see all around and that the traffic can see you. Make sure there is a gap between any parked vehicles on the other side, so you can reach the pavement. Never cross the road in front of, or behind, any vehicle with its engine running, especially a large vehicle, as the driver may not be able to see you.

 

Someone made reference to the car - I couldnt give a stuff about it. I just dont want to see someone potentially profit from their own negligence. In days gone it would have just been classed as an incident and everyone would have moved on in a situation such as this.

[Mossycat]

I think you and one or two others need to read the original post more carefully! If the concensus is that its up to the driver in 99% of cases as I get the feeling here then quite simply if I fancy a quick buck it would just be advantageous to throw yourself in front of a car as its never the pedestrians fault!

 

The post now is irrelevant anyway - I have been informed that case law these days presents a simple test. What would have happened had the car been travelling at e.g. 5mph, would the accident still have occured? I have also been told that in this instance the pedestrian has ignored the highway code which although in itself is not law it is referred to in the traffic act. Simply put a pedestrian should use a designated crossing point where one exists. If you decide to cross you should do so where drivers are in a position to see you and should avoid crossing between parked cars. Finally Parked vehicles. If you have to cross between parked vehicles, use the outside edges of the vehicles as if they were the kerb. Stop there and make sure you can see all around and that the traffic can see you. Make sure there is a gap between any parked vehicles on the other side, so you can reach the pavement. Never cross the road in front of, or behind, any vehicle with its engine running, especially a large vehicle, as the driver may not be able to see you.

 

Someone made reference to the car - I couldnt give a stuff about it. I just dont want to see someone potentially profit from their own negligence. In days gone it would have just been classed as an incident and everyone would have moved on in a situation such as this.

 

 

Exactly

 

And that's why if a claim like this landed on my desk I would defend the driver

 

Mossy

[citizenkain]

I hit an old pedestrian while driving myself a few years ago,he was quite badly injured,ribs broken and his left leg right arm and shoulder,my car was damaged but I managed to sue him for the repairs as it was his fault stepping out,I did call an ambulance for him etc

[JonCris]

I'm not going to continue arguing about this but those who advocate the pedestrian was totally to blame are wrong (including those who claim to have won) I would also mention that 'parked' cars are NOT 'stationary' traffic & that the traffic being 'stationary' gives the impression that ALL lanes are stationary & that any GOOD driver would be aware of this possibility so would drive accordingly

 

As to the 'correct'' way to cross the road I'm afraid we must allow for other people such as pedestrains to do other than follow the rules & whoever stated that pedestrians are at fault if they don't knows little of both the criminal or civil law

[reorete]

i agree with you joncris

[Tom87]

Sorry but the argument that you should have been driving according to the conditions etc. doesn't wash. Not morally and not legally. I take it that those who claim this always brake to less than 5mph EVERY SINGLE TIME you see a pedestrian anywhere near the side of a pavement?

 

Imagine you are going through a 20 zone at 20mph, in fine normal conditions etc., there is a sole pedestrian walking along the pavement, showing no intention whatsoever to walk out. Then, just as you are driving past, the pedestrian jumps into the road right in front of you, you have no chance to react and you hit him. Don't lie, you would deny completely it was your fault, wouldn't you? And you'd be right, it would be the pedestrian's fault. You are actually saying a driver is at fault if a pedestrian walks out right in front of their car just as they are driving past?!

 

I agree completely with Hillwalker and Mossycat. The pedestrian was negligent for obviously not looking where he was going on a known busy road in very busy traffic, and also omitting to use a designated crossing. If you choose to walk out into a road, it's completely your responsibility to ensure you look where you are going. You can't blame an innocent car driver for hitting you if you are weaving between cars and stepping out in front on moving vehicles with no warning.

 

Give the OP a break, he's said enough times that he would only use court action as a defence in case the pedestrian went through one of those injury claims solicitors you see on TV constantly between Countdown, Deal or No Deal and Place in the Sun. If this had happened to me I would do exactly the same thing. If the case landed in my office I would without the tiniest shred of doubt fight for the driver in this one.

 

While I have sympathy for the injured man, that should NOT cloud your judgment - by the description given it is clearly his fault, and any damages arising should be paid by him and not the driver. Last time I checked, being injured due to your own negligence is not an excuse to avoid being held culpable for your actions.

 

There is a tendency for people to emotionally jump to the defence of the more injured party just out of sympathy, even if they are clearly in the wrong. This is understandable but the wrong thing to do. This is seen on a weekly basis when innocent car drivers involved in accidents with motorcyclists who die attempting plain stupid manoevres are villified despite being the innocent party.

 

Yes, the pedestrian has the right of way on our roads, but that doesn't make you immune from blame if you are stupid enough to walk out right in front of a moving car.

Edited October 4, 2009 by Tom87

[JonCris]

Tom in your scenario then yes the pedestrian would be liable but that's not what happened here. The OP was passing stationary vehicles & as there was/is a pavement nearby they SHOULD have been aware that a pedestrian might emerge between the vehicles............ remember the pink elephant ad! be prepared for the unexpected

[Tom87]

Sure, but the guideline is to treat the "road side" (as opposed to the pavement side) of a row of parked/stationary cars as the edge of a pavement curb...i.e. when you get to the outer side of between two parked cars you should look both ways and check it's clear before walking out into the moving traffic, rather than just walking out without even bothering to look.

 

Obviously I wasn't there so it's hard to comment but from the OP's story, the pedestrian deserves at the very least some of the blame. Also I'm not sure the speed of the car matters, for example a car insurer would certainly not care...look how often you see people coming on here and other forums admitting they were at fault for an accident but saying they feel it's unfair because the other car was speeding. As I'm sure you know, the insurer couldn't care less how fast the other car was going and it doesn't affect the placement of blame if you were the one that started it. Surely it's the same with a pedestrian: if you decide to walk out into a road (or across a road behind a load of stationary cars), and a car is driving past right at that minute and can't stop, it doesn't matter if the car was going at 5mph or 100mph, you still should have been looking where you were going.