All road users owe each other a duty to travel with due care and keep a proper lookout of their surroundings to avoid collision. A road user also has a duty to steer clear of other vehicles, cyclists, or pedestrians and exercise proper care and control.
Pedestrians by law must not travel along a road if there is a footpath or nature strip adjacent to the road unless it is impracticable to travel on the footpath or nature strip. If the pedestrian is traveling along a road, section 238(2) of the Transport Operations (Road Use Management – Road Rules) Regulations 2019 states that they: –
“(a) Must keep as far to the left or right side of the road as is practicable; and
(ab) must, when moving forward, face approaching traffic that is moving in the direction opposite to which the pedestrian is travelling, unless it is impracticable to do so; and
(b) Must not travel on the road alongside more than 1 other pedestrian or vehicle travelling on the road in the same direction as the pedestrian unless the pedestrian is overtaking other pedestrians.”
On 2 November 2023, the Supreme Court of Queensland delivered its decision in Eden v Jamieson & Anor [2023] QSC 240 in favour of the Plaintiff, Mr Christopher Eden. Mr Eden was walking approximately 50 centimetres from the western edge of the roadway on Dysart Bypass Road when he was struck by the First Defendant Mr Leslie Jamieson’s vehicle.
Mr Jamieson alleged Mr Eden was liable for his injuries because he walked on the road in the dark with his back to Mr Jamieson’s vehicle in contravention of s 238. Mr Jamieson also alleged Mr Eden failed to use either of the nature strips by the road.
However, the Court found that at the time of the accident, there was no footpath or nature strip that was appropriate for Mr Eden to walk on. The nature strip on the western side had overgrown grass approximately one metre high and the eastern side contained a drain. The Court also found that the “big white motif” on Mr Eden’s shirt and the white plastic bag in his right hand made him “an extremely visible object to a driver of a motor vehicle who was paying attention”.
Mr Jamieson also alleged Mr Eden failed to move to the left of the road or off the road when Mr Jamieson’s vehicle was approaching.
The Court accepted Mr Eden’s evidence that he was about 50 centimetres onto the roadway from the left edge and that it was impossible for him to walk on the overgrown footpath.
Mr Jamieson also alleged Mr Eden failed to keep a proper lookout for Mr Jamieson’s vehicle.
The Court noted in s 238(2)(ab), Mr Eden was required to look forward in the same direction as Mr Jamieson’s vehicle. As Mr Eden was struck from behind, the Court found that it was Mr Jamieson who failed to keep a proper lookout. The Court opined that had Mr Jamieson paid attention to the elements on the road, he would have seen Mr Eden walking along the road and would have had ample time to stop his vehicle or steer clear of Mr Eden’s path.
The Court held that there was no contributory negligence on the part of Mr Eden and ordered Allianz Australia Insurance Limited, Mr Jamieson’s CTP insurer, to pay Mr Eden’s damages, in the amount of $987,654.99, for personal injuries suffered in the road accident because of Mr Jamieson’s failure to keep a proper lookout, take evasive action and steer clear in a timely manner.
This case tells us that pedestrians may travel along the road when it is impracticable to use a footpath or nature strip and otherwise exercise reasonable care, although the actions of any driver who collides with a pedestrian must also be scrutinised to consider whether their actions were reasonable.
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