Spain’s Directorate General of Traffic has announced plans to reform their laws, to make pedestrians more responsible for their own actions.
The proposal suggests pedestrians should be redefined as “users of the road” giving pedestrians responsibilities akin with drivers. They could be subject to breathalyser tests if injured in a road traffic accident. There is even a suggestion for a speed limit for pavements as “normal stride”. I’m not sure how that will apply to joggers!
The proposals are reported to have caused some outcry in Spain. Is it right to blame the victim, when the driver is in charge of the potentially dangerous vehicle?
How do different countries in the EU treat pedestrians injured in an accident?
England and Wales
In England and Wales the law has typically been quite protective of the pedestrian when assessing claims for compensation, placing a high onus on drivers.
An injured pedestrian has to prove negligence on the part of the driver to succeed in a civil claim, but the Court can take into account the pedestrian’s contributory negligence, by examining if they are at some way in fault for their behaviour, and asking if that behaviour partly caused the damage. If so, the Court can reduce the injured pedestrian’s damages if it is just and equitable to do so.
The French have a victim orientated approach to injury claims involving vehicles. If a vehicle was involved in an accident and caused damage the driver of the vehicle is obliged to compensate the victim. This means that pedestrians are generally fully compensated for personal injury following a road accident, without reference to their own actions or fault.
The only exception is if the victim committed an “inexcusable fault” which was the only cause of the accident. This is an extremely rare occurrence and hard to define.
As a popular holiday destination we represent many pedestrian road traffic accident victims injured in Spain. The current regime in Spain means that the driver is generally held responsible for damaged caused by a road traffic accident. The driver can be free from liability if he can prove the accident was caused exclusively by the pedestrian’s negligence, so the onus in Spain is on the driver proving he was not at fault, rather than in England and Wales where the pedestrian has to prove the driver’s fault. Reference is made to the Spanish traffic code, which sets out the obligations owed by the driver, which the driver will have to show compliance with.
Like in England and Wales, a pedestrian can find that the Court will split the responsibility between the driver and pedestrian, after taking into account the specific circumstances, if they make a finding of contributory negligence. For example a pedestrian injured when crossing a street other than in an authorised place (such as a pedestrian crossing) may be deemed to share responsibility with the driver.
If they are implemented, the new Spanish proposals could therefore see a shift in the way the Spanish Courts assess civil claims affecting UK holiday makers injured in Spain.
In Italy drivers of vehicles are also held responsible unless they can show that they did all that was possible to avoid the damage. Codes and regulations set out drivers’ obligations to road users, similar to our highway code. Again the burden of proof is on the driver to disprove his fault, rather than the pedestrian victim.
If you have been injured as a pedestrian whilst abroad it is vital that you seek specialist advice before pursuing civil compensation, so that you can understand if you can pursue your case in the Courts of England and Wales, and if so, which laws will apply to the assessment of your case. Some country’s systems are much more favourable to pedestrians than our own.
Joanne Berry is a Senior Personal Injury Solicitor specialising in Travel Litigation Claims at Slater and Gordon Lawyers UK.
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