The legal position was summarised by the Court of Appeal in a 2003 case:
‘It is rare for a pedestrian to be found more responsible than a driver, unless the pedestrian has suddenly moved into the path of an oncoming vehicle. The Court has consistently imposed on drivers a high burden to reflect the fact that the car is potentially a dangerous weapon’.*
It is therefore often important to establish how far the pedestrian was from the pavement (and so for how long they were in the road) at the point of impact. The nearer the pedestrian was to the centre of the road, or beyond, the more likely it is that a claim will succeed in full. The issue is whether a reasonable driver, paying proper attention, had time to avoid the collision. If a pedestrian steps into the road, and is then almost immediately hit, it can be difficult to criticise the motorist. However, see below regarding particular types of pedestrians.
The point of impact must be established by evidence including witnesses; the nature and position of damage on the vehicle; impact debris location; road marks; mobile ‘phone photos at the scene, ambulance/paramedic records and CCTV footage. If the police attended they will prepare an Accident Report. The more serious the injury, the more detailed this Report will be. Where there are life-threatening injuries, the Police will take photographs and undertake a thorough investigation. In some cases it will be necessary for the Claimant’s solicitors to commission an expert engineer’s report to establish facts such as the probable speed of the vehicle and the walking speed of the pedestrian.
When the pedestrian is a child, the motorist will be judged to a very high standard. In one case a driver was criticised for failing to slow down or stop, when a very young child was seen waiting to cross the road and then stepped into the path of the car. The same standard would apply if children are clearly visible playing on the road.
The fact that a pedestrian has been drinking, does not give the motorist an automatic defence. Each case will depend on its facts. But if a pedestrian is seen to be obviously drunk, near the edge of the pavement, a driver will be expected to alter their approach and speed, to anticipate the pedestrian stepping or falling into the road.
So, just because an accident does not seem to fall within the Court of Appeal’s general guidance, there may still be good grounds for a claim. Where a pedestrian has been injured by a vehicle, the law in the England & Wales is directed in favour of the pedestrian.
‘Hit and Run’
If the driver is later traced then it is usually possible to gather all the evidence needed and the case will proceed as usual. The Police will also be heavily involved to investigate a criminal offence of the motorist failing to stop at an accident. If the driver (and vehicle) remain untraced, then an engineer’s accident reconstruction report will probably be required. As long as the fault of the missing driver can be proved, then a claim for compensation can be made under the Motor Insurers Bureau Untraced Driver Scheme. It will not matter, financially, that the driver’s identity remains unknown.
*Lady Justice Hale EAGLE -V- CHAMBERS: Court of Appeal 24 JUL 2003