Jodi Gordon: As road users we all owe a duty of care to pedestrians


We’re all pedestrians, whether it be on a daily, weekly or monthly basis, yet when it comes to protecting the most vulnerable road user, there are a lot of misconceptions.

Monday, 2nd March 2020, 6:00 am It’s a well-established principle in law that pedestrians are the most vulnerable of all road users (Picture: Phil Wilkinson) Following an incident between a pedestrian and motor vehicle or, on the rare occasion, a cyclist, there are those who are quick to blame the pedestrian.

Calls of “they are always on their phone,” “they just walk out in front of you,” or “they have no regard for their own safety,” fill the comments section. However, the rise of incidents occurring on the apparent ‘safe havens’ of our pavements is extremely worrying. It’s a well-established principle in law that pedestrians are the most vulnerable of all road users.

We all owe each other a duty of care when out on the roads and should take reasonable care when walking, cycling, riding or driving to avoid collisions with other road users. The courts have not always been quick to uphold this principle. In the case of Calum McEwan v Lothian Buses PLC, the judge, at first instance, found in favour of the defenders, Lothian Buses, despite the fact Mr McEwan was struck in the face while still on the pavement.

This case went to appeal in the Inner House in 2014 and the decision was overturned. Within the appeal opinion, it stated; the pursuer “was on the foot pavement where, as a pedestrian, he was entitled to be and prima facie not at risk of being struck by a motor vehicle.” One year on, in 2015, the case of Jackson v Murray was heard in the Supreme Court.

The case involved a 13-year-old schoolgirl who had alighted from a school bus and had begun to cross the road when she was hit by a car. The judge, at first instance, found Miss Jackson to be 90 per cent responsible for the collision. On appeal, this was reduced down to 70 per cent but it was not until the judgment of the Supreme Court that a finding of a 50-50 split in liability was reached.

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The court made the assertion that Mr Murray ought to have observed the road ahead and adjusted his driving accordingly, “he was found to have been driving at an excessive speed and not to have modified his speed to take account of the potential danger presented by the minibus.

The danger was obvious, because the minibus had its hazard lights on.” In light of this background, it was interesting to see recently that Laura Laker of the Guardian and Dr Rachel Aldred from the University of Westminster had launched a project (Project Pedestrian) to investigate road safety by looking at pedestrian deaths on pavements during 2020. They want to investigate more closely who is specifically affected by danger on pavements, the impacts, the vehicles, the causes, the drivers involved and how justice (both civil and criminal) is done.

Historical data, provided via STATS19 from the Department for Transport, show that there were 5,835 pedestrian deaths between 2005 and 2018 across the UK.

547 (8.6 per cent) of these occurred when drivers hit pedestrians on pavements. At Pedestrian Law Scotland, we represent injured pedestrians in Scotland in civil claims for damages. We have noticed an increase in the number of cases where pedestrians have been injured when established on pavements or verges.

We were, therefore, interested ourselves to look at Scotland specific data from Transport Scotland to try and understand the contributory factors which result in these collisions. We have called our own project ‘Protecting pedestrians on pavements” Over the coming weeks, we will be sharing our findings. For now, I can confirm that in Scotland over the same 14-year period, there were 54 deaths and 443 seriously injured.

The key contributory factor accounting for 33 per cent of deaths, according to the police, was a lack of control by the driver. The aim behind this project is to help educate road users to better understand how these incidents are occurring. Through education, we hope the “them and us” mentality can be dispelled and we can all take better care of ourselves and others when out and about.

Jodi Gordon is a partner, Pedestrian Law Scotland

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