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NSW Car Accident - Negligent Pedestrian Responsible for Car Repairs?

Discussion in 'Insurance Law Forum' started by Jamess, 13 April 2015.

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  1. Jamess

    Jamess Member

    13 April 2015
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    I was driving a car and waiting at the lights for the traffic signal to turn green for me. When it did, I accelerated to go forward but a negligent pedestrian stepped out on the road without looking and I hit them (minor car accident).

    The person wasn't badly injured - some minor bruises - and they insisted on going home. I did get their contact details, along with witness contact details who can corroborate what happened.

    In this scenario, is anyone aware of whether the pedestrian's negligence can be made to pay the deductible I will have to pay? And would my car insurance company chase the pedestrian for their costs?

    Also, do the police need to be informed?
  2. Tracy B

    Tracy B Well-Known Member

    24 December 2014
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    Hi Jamess,

    A driver has a very high duty of care on the road to avoid injuring pedestrians. This duty of care includes driving in a safe and responsible manner, including anticipating pedestrians breaking road rules (especially if we're talking about jay-walking which happens extremely often) and avoiding pedestrians if one should suddenly walk onto the road.

    Having said that, in exceptional cases, the driver may be able to claim contributory negligence while still bearing some responsibility:
    • Axiak v Ingram (NSW case): driver hit two young girls who ran out from behind a bus while driver's view of the children was completely blocked by the bus and there was little the driver could have done to avoid hitting the children. Court found contributory negligence of 50% (i.e. the children were 50% responsible for the accident)
    • Allianz Australia Insurance Ltd v Glenn Swainson (QLD case): driver hit a man who was intoxicated and walking in the middle of the road with his back turned to on-coming traffic late at night. Court found contributory negligence of 60%
    In your scenario, your car was previously stationary, from waiting at the lights. This means that there would have been a greater likelihood of seeing the pedestrian earlier and hence, avoiding the accident. This sets your situation apart from the above two cases. Further, drivers have a particular duty to be careful and avoid pedestrians at crossings and traffic lights (see NSW road handbook).

    Yes, you should contact the police, even if the pedestrian does not wish to contact them. This is because the police can take statements from witnesses (including yourself and the pedestrian) to safeguard against the pedestrian later turning around and changing their story. It also avoids a charge of hit and run. Whenever someone (or animal) is injured, or something is damaged from a road accident, the police should be called. If no injuries are sustained, then the police need not be called. This is also stated in the NSW road handbook.
    Sophea likes this.
  3. Sophea

    Sophea Well-Known Member

    16 April 2014
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    I agree with Tracey, its very rare that a pedestrian would be held to owe a duty of care to a driver.

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