The Edinburgh festivals season is over for another year. For those of us who work in the city, negotiating our busy thoroughfares was challenging. For our busy solicitors at Pedestrian Law Scotland, making their way from the Court of Session to consulting rooms on the High Street was worse than the dodgems. Keeping pace with tourists was no mean feat. Erratic walking pace and sudden stopping causing a face-to-back embrace with a tourist is not really a pleasant experience.
It wasn’t the beauty of Edinburgh and the festival sites that caused this sudden stopping, but rather the dreaded mobile phone. With an apology on their part, and a “tut” on ours, we moved on. As pedestrians negotiating streets, we are not truly a hazard to one another, just a minor inconvenience.
However, our roads are different and present specific challenges for all road users. There are four categories of vulnerable road user in the Highway Code; motorcyclists, cyclists, horse riders and pedestrians. Interaction between different groups of road users must be based on mutual respect and recognition of vulnerability. Pedestrians are considered to be particularly vulnerable to serious injury and, as such, the mobile phone is just as distracting to a pedestrian as it is to a driver.
Civil law recognises the vulnerability of pedestrians and the Courts will readily accept that both blameworthiness and causative potency must be assessed. Two recent decisions from the English courts illustrate protection of the vulnerable pedestrian but also consider contributory negligence for not taking account of their own safety when crossing a road;
In Podesta v Akhtar (16 May 2019), a pedestrian was struck by a car crossing a wide road with a central traffic island. Ms Podesta sustained serious injuries when she stepped off the traffic island and began to cross the eastern carriageway having safely negotiated the western carriageway. Whilst doing so, she was hit by a taxi. She was knocked unconscious and sustained significant injuries. The judge found that the taxi driver had failed to exercise a standard of care of a reasonable driver and, as such, was negligent. The pedestrian was there to be seen as a potential hazard, while standing on the traffic island. If he had identified her as a potential hazard, he should have been ready to react. The judge found that the taxi driver continued to accelerate from the point at which he saw the pedestrian. At three seconds prior to impact, Miss Podesta stepped off the traffic island. Even at that point, the taxi driver could have stopped his vehicle without incident but failed to do so. The judge also recognised that the pedestrian had put herself in danger by failing to notice the oncoming vehicle. Therefore, he found that Miss Podesta’s share of the blame was 30%.
In, Brushett v Hazledean (June 2019), a pedestrian was struck by a cyclist while crossing a junction that was already busy with pedestrians. As the cyclist approached, he accelerated to about 15mph and sounded his air horn, causing most of the pedestrians to move off the road. Brushett, however, was looking at her mobile phone and, instead of continuing onto the pavement, she stepped backwards directly into the cyclist’s path, making the collision unavoidable.
Although the cyclist had been entitled to proceed, the judge stated that he should have been alert to the fact that pedestrians behave in an unexpected way. He should have given way to pedestrians already established on the road and he failed to do so, therefore was negligent. However, the judge also found that the pedestrian had not been looking whilst crossing the road and was distracted by using her mobile phone. On that basis, the judge considered that she had contributed significantly to the collision.
Both of these cases illustrate that the Courts do take into account the hierarchy of vulnerable road users. However, by looking at her phone when crossing the road, Ms Brushett was equally culpable and her damages were reduced by half.
Drivers must anticipate the actions of pedestrians and not simply continue on their intended path. Be aware and be prepared to expect the unexpected. Pedestrians are vulnerable and in situations as hazardous as crossing a road, you can’t allow yourself to be distracted.
Jodi Gordon, Pedestrian Law Scotland