By Eoin P. Campbell, LL.B., Solicitor
There are numerous reasons why pedestrian accidents commonly occur. Often accidents are caused due to the fault of the pedestrian himself – for instance, a child may run out right in front of a car. If the car is already too close to come to a stop, it is likely that injury will occur and the court will recognise that the driver could do nothing to avoid the impact and was, therefore, not at fault. Normally, however, if the vehicle had been speeding at the time of impact then it will be most likely deemed to be the fault of the driver, even though the pedestrian may have walked or run out in front of the vehicle. Also, if you are knocked down on the pavement by a moving vehicle, or struck by a vehicle when you are on a pedestrian crossing, you are likely to have a very strong claim for personal injury compensation. Indeed, in the majority of cases it is not the fault of the pedestrian at all but the cause of driver negligence.
Injuries and Damages
The first thing that is to be remembered when pursuing any personal injury claim is that it is in fact just that: a personal injury claim. The plaintiff must have sustained some form of injury either physical or psychological as a result of being knocked down. Even where the driver has indeed acted negligently, even criminally so, one should note that with regard to the civil law, a potential plaintiff can only claim compensation for a personal injury loss or damage that he or she has in fact sustained. A near miss – other than where it can be proved to have caused, for example, a severe psychological trauma – is not sufficient to justify compensation being awarded.
If you have not sustained a personal injury as a result of your accident you are, of course, still entitled to attempt to recover the costs of personal property etc. that may have been damaged or destroyed. The same principles apply i.e. the damage must have in fact occurred.
Negligence
The second factor to note is that the injury sustained must result from the negligence of the driver of the vehicle who had a duty of care towards you and the other pedestrians on the road at the time of the accident. If the driver can prove that he was not driving in a negligent fashion at the time of the accident, however, the claim will fail.
Liability
The cause of an accident is not always obvious. In many situations one party may be completely to blame. However it is also true that more than one, or several, factors may have contributed to the accident that has occurred. Moreover, one of the causal factors may have, in fact, been the negligence of the injured party himself e.g. the pedestrian stepped out onto the road without looking. How then can blame be apportioned? Is the injured party entitled to any form of compensation if he or she has contributed, albeit slightly, to their own injuries?
Contributory Negligence
It may also be decided by the court, or indeed agreed between the parties, that both the defendant and the plaintiff were partially at fault for the plaintiff’s injury and in such circumstance the principle of contributory negligence will apply.
Contributory negligence is the legal principle that an injured party i.e. the plaintiff may possibly have contributed to his or her own injury by acting in a negligent manner when faced with the obvious and known conditions. When this is compared with the negligence of the defendant (or defendants), the extent of contributory negligence may defeat the plaintiff’s case (i.e. the claim will be unsuccessful) or reduce the amount of compensation awarded. Often, for example, it may be agreed that the plaintiff bore 25% of the responsibility for his or her accident while the defendant was responsible to a degree of 75%. In such circumstances, the plaintiff’s damages, assessed by the severity of his or her injury and loss, will be reduced by 25%.
Negligence without an injury therefore, or alternatively an injury without negligence, are not enough to pursue a successful personal injury compensation claim.
What should I do if I have been knocked down?
The Only Priority is Your Health and Safety
As obvious as it may seem, it should always be remembered that your health and safety is the most important consideration. If, for example, you have been knocked down by a vehicle, your well-being is far more important than any potential claim that you may have. If you, or indeed anyone else, has been seriously hurt, an ambulance (together with the Gardaí) should be called immediately.
Go to the Nearest Hospital
Following an accident (be it a road traffic incident, an accident at work or otherwise) it is of the utmost importance that you report to the casualty department of the nearest hospital, or, at the very least, make an emergency appointment with your general practitioner. Even if immediately following the accident you feel that your injuries are not particularly serious it is still advisable that you see a doctor. Whiplash Symptoms (a common injury for a pedestrian who has been struck by a vehicle) can be experienced immediately following impact but often do not commence to develop for a number of hours after the accident and then may worsen during the next 24 to 48 hours. Never underestimate peace of mind. The reality is that monetary compensation is no substitute for your health and well-being and as any solicitor who specializes in personal injury litigation can tell you, a common remark from clients is that they would exchange the compensation money in order to revert to their prior health and fitness ‘in a heartbeat’.
It should be noted further that your attendance at hospital or with your local doctor will be recorded in your medical records which may later be used in evidence to support your claim.
Inform the Police
Following a road traffic accident, it is essential that you report the matter to the Gardaí. If there are no obvious injuries at the time, the Gardaí may well indicate that they will not be attending the scene.
As one would expect, should the accident have been of a more serious nature and an ambulance has been called, the Gardaí will attend and take statements from the various parties and witnesses (if any) and make a sketch of the accident scene. The Gardaí investigation may result in a referral to The Office of the Director of Public Prosecutions (DPP) for prosecution.
If, as is often the case, the Gardaí do not attend the accident scene, it is advisable to visit your nearest Garda station at the earliest opportunity to request that they take details of the accident i.e. names, insurance details and registration numbers of the driver and pedestrian and the date, time and location of the accident itself. Each Garda station keeps a road traffic accident report book precisely for this purpose.
Legal Formalities
As most people are no doubt aware it is very important to obtain the name, address and insurance details from the other driver following an accident. This is, however, not always possible as you (or indeed the driver) may be very seriously injured following the collision. What one should do, however, in all circumstances is ,if possible, note the registration number of the vehicle (even when the other party has appeared to be co-operative as the details given may be erroneous either due to confusion and shock following what is always a frightening experience or perhaps due to deliberate malice; do not assume that the other party is as honest as you!). The identity and insurance details of the other party can usually be later verified from the registration number.
When Driver Details are Not Know
It is not always possible to obtain details of the other driver at the scene of an accident. Of course, when serious injury occurs, this will undoubtedly take precedence over the exchange of names addresses and insurance details. If you have been unfortunate enough to have been involved in an accident such as this, please note that your solicitor can still pursue a claim on your behalf. Should the Gardaí have attended the scene of the accident, your solicitor can very simply request and pay a small fee for the details of the other driver and a copy of the relevant Gardaí report.
Alternatively, one may well have been a victim of a ‘hit and run’ incident or have later discovered that the driver involved was uninsured at the time of the accident. In such circumstances, please note that your Solicitor can submit the matter to the Motor Insurers Bureau of Ireland, a body which exists to protect the victims of road traffic accidents when the party at fault is untraced or uninsured. The MIBI can act as the ‘insurer’ of the unknown or untraced driver and can, if appropriate, make a compensation payment to the victim
Make Use of Electronic Technology to Record Information
In modern Ireland it is fair to say that most of us own a mobile phone, which should obviously be used immediately following an accident to contact the Police/Gardaí and, if necessary, an ambulance. We should also utilise the camera and/or video function present on most modern cell phones to record images of the vehicle involved (showing damage to the car if applicable and its road positioning) following the accident. Furthermore, it may also be useful to your claim if the pictures can give an accurate impression of the weather and road conditions. Obviously, the licence plate number of the other vehicle can also be recorded in this way.
How Much Compensation?
This is one of the most common questions asked by clients of their solicitors in relation to all road traffic type personal injury claims.
The short answer is that in the early stage of the preparation of any personal injury litigation case there is absolutely no way of knowing the answer to this question.
Experienced as he or she may be in litigation cases of this nature, it is worth reminding oneself that the solicitor is not a medical doctor. He or she is the first to recognise this fact and will only begin to consider the potential settlement value of the case when medical evidence in the form of your medical records and possibly written reports from your general practitioner (or perhaps specially commissioned reports from a consultant) have been obtained. In fact, it would be rather unprofessional of your solicitor to estimate a valuation of the case’s settlement value in the absence of medical evidence.
How Compensation Amount is Determined
It is important to remember that (assuming liability is not in question) the ‘value’ of any personal injury case is assessed by looking at the severity of the injury to the plaintiff and how same will affect their working, family, recreational and personal lives in the short, medium and long terms.
Some injuries (and whiplash type injuries in particular) may take some time to fully manifest themselves and it maybe some months or even years before your doctors can provide an accurate prognosis of the expected recovery period or diagnose a long-term condition.
Moreover your claim may well include an aspect of “special damages” such as loss of earnings (including potential loss of future earnings).
Immediate Settlements with Insurance Companies
I would advise those who have sustained a personal injury as the result of the fault of another in a road traffic accident to consider the above very carefully after an accident has occurred. Increasingly, clients are reporting that they have been contacted directly by the third party’s insurance company with offers of settlement in the weeks or even days following the incident.
The temptation to accept an early offer of settlement is strong; the immediate offer of money with minimum hassle and fuss, particularly in the current economic climate, often seems too good to refuse. There is, however, no way of knowing how much the claim is potentially worth at such an early stage and the risk is that the plaintiff may settle their claim for a figure that falls short of its potential value. It is worth asking yourself the question ‘Why would the insurance company offer to settle the case at such an early stage?’.The response is quite logical; to save costs. The liable party will normally be responsible for not only the compensation payment but also for both sets of legal costs and for the costs of procuring specialist medical reports.
Summary
- Pedestrian accident claims have to be justified. Sustaining an injury without there being any third party negligence is insufficient cause to pursue a personal injury claim.
- Also, if there has been no injury, you cannot make pedestrian accident claims. A near miss is not sufficient even though a driver may not have been paying due care and attention.
- Pedestrian accidents claims can also be influenced by any contributory negligence on the victim´s part which was partly responsible for them being injured.
- The formalities of pedestrian accident claims are the same as any road traffic accident. Seek medical attention and report the incident to the Gardai if they have not attended the scene of the incident.
- Victims in pedestrian accident claims should also ensure that they have the name, address and the insurance details of the negligent party.
- Then they should speak with a solicitor on our free advice service to ensure they receive the maximum award of compensation that they are entitled to.
It is important to note that each case is unique. If you have recently been involved in an accident in which you have sustained a whiplash type injury and feel that you have a potential personal injury claim, you are advised to discuss all of the points raised in the preceding article with a solicitor at the earliest opportunity.
Copyright © 2009-2019 Eoin Campbell
About the Author
Eoin P. Campbell is an honours law graduate (LL.B) and qualified solicitor whose primary professional experience is the area of litigation and in particular personal injury claims. Eoin P. Campbell is currently lecturing in law at two universities in Lyon, France.