In a motor vehicle accident, am I 10% responsible just for being on the road?

The short answer is no. The classic example is a rear end accident in which you are stationary and another car collides with you due to a failure to brake. There is no possibility of you being held responsible in this circumstance.

However, Courts do impose significant responsibility on motorists, bike riders and pedestrians to take care for their own safety.

The Supreme Court in South Australia has held a driver 10% responsible for proceeding through a light that had just turned green at a basic + shaped intersection without looking to their left and right to ensure that a car was not proceeding against a red light. The car that did proceed through the red light was found to be 90% responsible.

A common accident is a person proceeding against a red or amber light when another car travelling from the other direction makes a right hand turn across their path. Increasingly there is dash cam footage of such accidents which can assist in arguments about who is responsible for the accident and to what extent.

The person making the right-hand turn is aware of the danger that another driver could travel through an amber or red light so needs to exercise caution and care for their own safety before starting their turn. Relative contribution will still favour the person making the turn but how much their contribution is will depend on the particular circumstances of the crash.

Similarly, there are numerous accidents when courteous drivers leave a gap in heavy traffic so that a car can turn across their path into a gap. There are many accidents in which a vehicle does not stop with the other drivers to make the gap and a collision occurs with the turning vehicle. Who is responsible and to what degree will depend on whether the vehicle that didn’t stop had a clear view of the car making the turn as well as how cautious the turning driver was i.e. speeding through or travelling slowly.

Pedestrians assume a special place in such incidents due to the significant disadvantage they have compared to a vehicle. Nonetheless, if the pedestrian leaves no opportunity for a car to take evasive action, they can be held wholly responsible such as a person tripping and falling in front of a moving vehicle.

Courts impose strong duties on drivers to drive cautiously near pedestrians, but pedestrians can be criticised for the following amongst other things:

• Not crossing at a nearby intersection
• Not keeping a proper lookout
• Wearing dark clothing at night or in conditions with poor visibility
• Moving quickly or unexpectedly
• Proceeding against a red light

The above factors do not necessarily mean the pedestrian will not be compensated, but the amount of compensation they are awarded may be reduced depending on the circumstances of the accident.

When a question as to how much a person contributed to the accident is raised, it is important to obtain legal advice as lawyers deal with these issues commonly and as an individual you are unlikely to be aware of the intricacies of the law.

Even a 5% change in responsibility can have a significant impact on the compensation payment.  If you are found to be 5% responsible for the motor vehicle accident, then the compensation you are entitled to receive will be discounted by 5%.  The cost of seeking legal advice will usually be outweighed by the additional compensation.

MKF Lawyers have significant experience in personal injury compensation claims and in particular motor vehicle accident claims. Contact one of our specialist motor vehicle accident lawyers for advice by email at info@mkflawyers.com.au, by telephone on 08 7093 2955 or by submitting an online enquiry form at www.mkflawyers.com.au/freeclaimcheck

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