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Table of contents

1. The true losses suffered in a Car Accident are often under-estimated.2. Who can claim motor vehicle injury compensation?3. What can you claim for as part of motor vehicle injury compensation?4. What are the most common road and car accident injuries?
Pedestrian crossing

As a pedestrian you are a road user. You have rights and responsibilities just like any other driver, vehicle user, or cyclist. You are also particularly vulnerable to injury because you’re unprotected by a seatbelt or airbag as you would be in a vehicle. 

The statistics on injuries and deaths involving pedestrians reveal that in 2017 there were 35 fatalities on Queensland roads. Of these fatalities, 26 were male and 9 were female, and in 39% of fatalities the person was found to be impaired by alcohol. Clearly, while drivers need to take care, we all have a responsibility as pedestrians to use caution when walking, to cross the road in a safe manner, and to use footpaths wherever possible.

The fact remains that despite all the care one might take, collisions between pedestrians and vehicles (such as being hit by a bus) do occur. If you have been injured by a vehicle, there are options available to compensate you for any loss or injury you may have suffered.

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Which road users are pedestrians?

When we are talking about pedestrians in this article, we are referring to anyone who is:

  • Walking or running.
  • Using a wheeled recreational device - such as rollerblades, skateboards, roller skates and foot scooters.
  • Using a personal mobility device - such as a rideable.
  • Using a motorised mobility device - such as wheelchairs, motorised mobility scooters and electric wheelchairs.

Common injuries for a pedestrian hit by a car

Pedestrians are vulnerable to a range of injuries when hit by a car. The extent of injuries will often depend on the speed at which a pedestrian is hit, the part of the body that is hit, and the age and physical fitness of the person being hit. 

However, that is not to say that severe injuries cannot be sustained even with a low-impact collision.

Common injuries for pedestrians who have been hit by a car include:

  • Traumatic brain injuries and musculoskeletal injuries.
  • Chest and abdominal injuries.
  • Trauma to the head, legs and pelvis, tibial plateau fractures and ligamentous injuries of the knee.

Head injuries are, by their very nature, generally more life threatening. However, severe injuries to the upper and lower legs or knees can lead to long-term disabilities.

Common causes of pedestrian injuries

Walking is a key source of transport for many people every day. Whether you are walking a short distance to get to and from your car, or walking to the supermarket from the carpark, you are a pedestrian. 

A common cause of pedestrian injuries is a collision with a car or vehicle (including bicycles) but there are other ways a pedestrian can be injured, such as by tripping or falling due to uneven surfaces or potholes.

Example: Gina is walking from her car to the supermarket. It is dusk and the lights in the area of the carpark she is in are broken. Due to the poor lighting she does not see a pothole. She steps into the pothole and twists her ankle, fracturing her wrists when she catches her fall. Gina would likely be able to make a claim for compensation from the registered owner or party responsible for the maintenance of the car park.

Example: Derek is walking home from the pub. He is intoxicated and is walking on the edge of the road. He staggers into the path of a car which is pulling out of a side street, and is clipped by a bus wing mirror. He falls and breaks his arm. While Derek would likely be able to make a claim for compensation, any amount he would be eligible for would be reduced by the fact that he was contributory in his negligence (that is, he contributed to his injuries) in choosing to walk on the road while intoxicated.

In both of these cases, even though the circumstances are different, each injured person would be able to claim some form of compensation from the party responsible for the injuries.

I was hit by a car - what should I do?

Claims checklist with ticks

If you have been hit by a car and suffered injury, no matter how minor, it is vital that your first step is to seek medical attention. 

You may have been injured in a way that is not immediately apparent, such as with a sprain or strain that worsens over time, or you may have suffered a concussion and need medical attention to ensure you do not suffer more serious consequences.

  • While you are at the scene of the accident it is important that you get the other driver’s details if possible. You will, in most circumstances, be able to get their licence plate if they refuse to give you their details, and then contact police with this information.
  • Take photos of the accident if possible, including any signage or pedestrian crossing information.
  • Get the details of any onlookers or witnesses, as they may be able to help you by verifying your version of events when making a claim for personal injury compensation in future.
  • Contact personal injury lawyers who specialise in injury claims so that you receive full and appropriate advice on how to proceed.

It is worth noting that if you do choose to make a claim for personal injury compensation against the driver of a vehicle for your injuries, you will not be suing the driver themselves; rather they will be covered by the compulsory third party (CTP) insurance which is included as part of registration in Queensland.

What if I was hit by a car and the driver didn’t stop?

If the driver of a vehicle hits you and does not stop, this is known as leaving the scene of a motor vehicle accident and is a serious offence. When a ‘hit and run’ happens it is usually so fast and potentially traumatic that you may not have an opportunity to get the licence plate details of the vehicle who hit you.

This does not mean that you have no options for recourse. In fact, there is a statutory body, the Nominal Defendant, which was set up specifically to protect the rights of persons injured by the actions of unidentified or uninsured parties.

  • The Nominal Defendant acts in the same way that a CTP insurance provider might; by providing compensation for any injuries you may have suffered and any loss.
  • It is important to note that if you have been hit by a car and the driver did not stop, you absolutely must report this to police.

The police have the capacity to investigate this matter, and you will also need to provide the information about your accident to the nominal defendant.

Injured by an e-Scooter?

Icon on man speeding on an e-scooter

You will likely have seen the explosion of e-Scooters (electric scooters) across Brisbane. These nifty devices are a simple mode of transport for short journeys within the city, but they also pose a serious threat to safety - especially when ridden at high speeds and in pedestrian-heavy areas.

There have been plenty of crashes between pedestrians and scooter riders, so what happens when you have been injured by one? Can you claim? The short answer is that the rider of the scooter will be responsible for your injuries provided that it was their actions that caused your injuries. The company, such as Lime or Neuron, will not get involved in any accidents, unless it was their device that was faulty and caused the injury.

The same goes for anyone riding an e-Scooter. Every time you get onto an e-Scooter you are responsible for any injury suffered and the company will not accept any responsibility.

Example: Tessa is walking home from soccer practice when Tony rides around a corner on an e-Scooter. He swerves suddenly and collides with Tessa, knocking her to the ground. She breaks her wrist and is unable to work for two months. Tony would be personally liable for the injury Tessa has suffered, as well as any financial loss.  

Example: Jemima is riding home from uni on an e-Scooter when the brake cable snaps suddenly. She has to fling herself off the scooter to avoid riding into the Brisbane River, and suffers substantial grazing to her legs and knees. She needs hospital treatment. Jemima would be able to make a claim against the e-Scooter company as it was their faulty product that led to her injury.

What does a pedestrian injury claim cover?

When making a claim for compensation after suffering an injury as a pedestrian, you will be claiming for any financial loss which has arisen from your accident. You will be able to claim for any medical costs or associated reasonable expenses incurred due to the injury. The essential nature of a personal injury claim is to return you to the position you were in prior to the accident, at least financially.

Your claim includes:

  • Medical expenses (including rehabilitative treatment)
  • Loss of income (both past, current, and future)
  • Any reasonable adjustment to your home to accommodate permanent injury (such as ramps for wheelchairs, disability aids in bathrooms etc.
  • Loss of enjoyment
  • Pain and suffering
  • In-home care provided by carers or friends/relatives

Any damages will be calculated by looking at the path your life would have taken prior to your accident, and how your life is now changed by the accident taking place.

Example: Gary is an expert surgeon at the start of a brilliant career. He is injured in a hit and run accident on a pedestrian crossing. He is severely injured and is unable to work as a surgeon again. As Gary’s earning capacity will be severely impacted upon, he would be compensated for the loss of income that he would have received during his career. He would also be compensated for any other associated costs relating to his injury.

Example: Gwenyth is retired and receives the pension. She is injured in an accident when she is walking across a road and a driver fails to see her as it is dark. Gwenyth fractures her hip in the fall. She would be compensated for related medical and personal expenses, but as her earning capacity has not been impacted this would not be considered as part of her overall compensation.

How long will my claim for compensation take?

Stopwatch timer

In most cases a claim for compensation is going to take between 12 and 18 months. This is because any claim for compensation requires a thorough assessment of your injuries and will require you to go through the process of seeking compensation from the insurance provider of the at-fault driver. 

You will need to wait until such time as your injuries are stabilised to fully assess the damages payable to you.

For example, you may have a back injury that requires surgery, and you will not know the full extent of the impact of your injuries until you have recovered from the surgery. Your personal injury lawyers will be able to assess your claim for compensation and will speak to you about the injury compensation you are likely eligible for.

What if I was jaywalking / didn’t cross at pedestrian crossing?

If you were jaywalking or were crossing the road without a pedestrian crossing in place, you will likely still be able to claim compensation for your injuries. However, you may be awarded less in compensation if it is found that your actions (for example by jaywalking or crossing without a pedestrian crossing) contributed to your injuries in some way. This is known as contributory negligence and can reduce your overall compensation by a relevant amount.

What if I was on my phone?

As noted above, you will likely still be able to claim compensation for your injuries if you have been hit by a car while walking and on your phone, but you may have any compensation amount reduced to allow for your contribution to your injuries.

What this means is that if being on the phone distracted you, which meant that you did not pay attention to your surroundings, your actions contributed to your injuries.

What if I was drunk?

There are certain rules around being hit by a car while you are intoxicated and your rights to compensation, but the general premise is that if your intoxication contributed to your accident this will reduce your overall claim for compensation.

Note: If a pedestrian is struck by a vehicle in a location where they should have been safe from vehicles then the driver would be fully liable. For example, if a driver mounted a curb and hit a drunk or distracted pedestrian on the footpath then it’s the driver who will be deemed at fault

It is important that you speak to a pedestrian injury lawyer if you have been hit by a car while drunk to ensure your personal injuries are adequately compensated.

When do pedestrians have the right of way?

Whenever you are driving or riding in Queensland you must give way to pedestrians who are:

  • On a pedestrian crossing, school crossing, or marked foot crossing
  • On or entering a road you are turning into
  • In a shared zone, or in a slip lane

Pedestrians have right of way when crossing the road, and drivers have a duty to ensure that they anticipate the actions of pedestrians. The courts impose a very high duty of care on drivers to ensure that the rights of pedestrians are protected.

Is a driver always at fault when hitting a pedestrian?

While there are some situations where a pedestrian’s actions will be a major contributing factor in an accident, the fact remains that drivers have a duty of care to pedestrians, and this includes anticipating that pedestrians may cross the road illegally or walk while intoxicated. As a result, some cases will see a reduction in the amount of compensation payable by way of contributory negligence on the part of the pedestrian.

Can a pedestrian be at fault?

A pedestrian can contribute to their injuries, but as noted above the driver of a vehicle has a very high standard of care imposed on them. Therefore, it is rare, but not impossible, that a court will find a pedestrian more responsible than a driver, which means that any compensation will be reduced by the deemed amount of contributory negligence.

Example: Rick is walking home and not paying attention to the road. He steps out from behind a truck and begins crossing the road while texting. A car coming the other way hits him, and he suffers accident injuries for which his compensation claim is calculated at $100,000. When his matter is assessed it is found that he was 40% responsible for his injuries, which reduces his injury compensation amount by $40,000.

What if I hit a pedestrian with my car in a road accident?

The first thing you need to do is call emergency services including police and ambulance services. A pedestrian accident can be very serious. If the injured pedestrian has suffered head injuries or suspected spinal injuries, they will require immediate medical attention.

  • You will need to take a note of all of the factors which you consider contributed to the accident.
  • It may help to make a note on your phone or on a piece of paper while the details are fresh in your mind.
  • Speak to any bystanders who may be happy to provide a statement. This can help when proceeding with a claim for compensation.
  • Take pictures of the accident, and any damage that has been caused to your car.
  • Cooperate with police and any emergency services to ensure that the matter can be resolved as smoothly as possible.
  • Speak to your insurance provider and advise them of what has happened.
Posted by Sarah Truter Solicitor

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Disclaimer: Please note, this content is designed as general information only and does not constitute legal advice. While we make every effort to fact check and keep items up to date, legislation may change from time to time. For advice on your specific situation then please contact us.
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