Thu | Jul 18, 2019

Cedric Stephens | Holding distracted pedestrians accountable

Published:Sunday | June 23, 2019 | 12:17 AM

QUESTION: Can pedestrians be held liable for causing motor vehicle accidents? I was driving a few days ago in Havendale. There were grass-covered sidewalks on both sides of the roadway. There was a big pothole some distance ahead on the left side of the road. Three pedestrians were walking towards me in the middle of the road. I had to brake very hard to avoid falling into the pothole and, possibly, damaging it and hitting the pedestrians. Had that not happened and there was an accident, couldn’t they have been held responsible?

– BN, Kingston 19

 

INSURANCE HELPLINE: Pedestrians need to be very careful when they use public roads. Data from the Road Safety Unit (RSU) according to RJR News, show that there were 100 fatalities for the first three months of 2019. During the same period in 2018, the number was 72. Pedestrians and passengers accounted for 21 deaths.

Unfortunately, the information from the RSU did not say how many of the deaths were to passengers as compared to pedestrians, and, in the case of the latter group, how many were caused by or contributed to by their carelessness.

Distracted driving caused by cellphone use has been the subject of many of my articles. However, not once have I written anything about the increasing trend of cell-phone use by pedestrians, and, incredibly, motorcyclists. Scores of walkers can be seen on busy streets in places like Half Way Tree crossing lines of traffic, paying very little attention to the risks they create for themselves and oblivious of the threats that they pose for motorists every day. Your question is, therefore, very timely.

Many Jamaicans visit the United States. They would know something about the jaywalking laws there. Equivalent laws do not exist here. For those who are unfamiliar with it, jaywalking occurs when a pedestrian walks in or crosses a road that has traffic.

“It originated with jay-drivers, people who drove horse-drawn carriages or automobiles on the wrong side of the road, before taking on its current meaning.” In countries like Jamaica, the laws concerning how pedestrians use public roadways tend to be far less restrictive than those in the US.

According to United Kingdom solicitors Digby Brown, English Law, which is the foundation on which Jamaican laws are built, are weighted in favour of pedestrians. “When drivers get behind the wheels of cars, they take control of potentially lethal weapons.” Accidents, can have fatal consequences as indicated by the statistics. This is more so when a car is involved in a collision with a pedestrian. It’s unlikely that anybody would dispute that if a car strikes a pedestrian, the pedestrian is far more likely to be more seriously injured than the driver.

Science also plays a role in the pedestrian bias. Research conducted by Professor John Wann at the Department of Psychology, Royal Holloway, University of London, discovered that children cannot accurately see or judge vehicle speeds above 25 miles per hour.

Some six- to 11-year-olds may not actually be able to tell if a vehicle is approaching at all even if the children are paying close attention to the road. The same principle applies to those aged over 75 years old.

Do pedestrians have a legal responsibility for their actions in road accidents? The solicitors say, in simple terms, yes, they do.

“Everybody has a duty to take care of their own safety, much of which is common sense: pedestrians should cross at a Green Man (pedestrian crossing); they should not walk across the road on their phone checking social media or browsing a website (if you are crossing the road right now please look up!) and should continue to look both ways as they cross the road. However, going back to the original point – drivers are driving a potentially lethal weapon. Therefore, there is arguably a greater duty upon drivers to make sure they don’t hit a pedestrian even if the pedestrian does something careless or reckless.”

They also write: “In civil law, which is what governs personal-injury claims, if a pedestrian steps on to a road without looking first and steps into the path of an oncoming car, the pedestrian may still consider a claim for compensation against the driver. However, much legal discussion will take place about the extent to which the pedestrian has contributed to the accident. If the driver can prove some negligence on the part of the pedestrian, the pedestrian’s compensation will have a percentage deducted to account for his contribution to the accident. This is known as ‘contributory negligence’. So, for example, if a pedestrian is found to be 25 per cent to blame for the accident, they will only receive 75 per cent of the compensation they would have been entitled to if the accident had been entirely the driver’s fault.”

The solicitors also provide an answer to the intriguing question: Can drivers claim compensation from a pedestrian?

They answer it this way: “In any accident involving a pedestrian it is, in theory, open to a driver to claim compensation from the pedestrian in respect of vehicle damage or other injury or losses the driver suffers. However, in the vast majority of cases, it makes little sense to do so. In order to succeed, the driver would first need to prove that the accident was, on the balance of probabilities (i.e., greater than 50 per cent), the fault of the pedestrian. This may not be easy to do.

“Secondly, there would need to be a route to actually obtain compensation to make proceeding worthwhile. Cars have insurance, pedestrians do not. Unless it can be established that the pedestrian has enough money or assets to meet the claim and legal costs of the driver, it would not make economic sense to pursue such a claim. Drivers could meet their own legal costs, but there would be little point if there was nothing to recover from the pedestrian.”

It should be very clear that the questions that you have posed concern legal – not insurance – issues.

While I may have some knowledge about the latter, I am not qualified nor am I purporting to dispense advice on the former. I am simply sharing information with you that I have researched and believe to be from a reliable and authoritative source. I recommend that you contact a local attorney.

Cedric E. Stephens provides independent information and advice about the management of risks and insurance. For free information or counsel, write to: aegis@flowja.com