|Posted on March 3, 2013 at 8:33 AM||comments (2621)|
The recent fatal road traffic accident at Sea Lots, Port of Spain, has evoked great emotion, caused national inconvenience and even led to the dismissal of a reporter. There has been little debate on the rights and duties of pedestrian and motorist alike and it poses an apt example to highlight some common misconceptions and answer the question do pedestrians owe a duty of care when crossing the nation's road?
While it is common knowledge that motorists owe a duty of care towards all other road users, both motors and pedestrians, what is less known is the duties pedestrians owe to themselves and to motorists.
In the absence of a pedestrian crossing or traffic light, pedestrians have not right of way that supersedes that of motorists. A pedestrian crossing a road owes a duty to himself and to road users to exercise caution and not cross in circumstances that can pose a danger to himself and others.
This principle is nothing new and is part of the general concept of the law of negligence. In the local case of Serrano v. Albino and Collins (an unreported decision of the High Court of Trinidad and Tobago delivered on 23 July 2004), a pedestrian was stuck by a taxi whilst attempting to cross Independence Square, Port of Spain, an area overflowing with pedestrians. The court noted a crucial factor was whether the motor vehicle was lawfully travelling on the road at the point in time, noting:  “It is one thing to be struck by a motor vehicle which is lawfully travelling on the road; but another matter altogether to be struck by a vehicle which is illegally overtaking on the left hand of the lawful traffic proceeding along the road. The duty of care on the driver and on the pedestrian is completely different in the two situations.”
The Court held that the pedestrian was not entitled to cross the road in the manner that he did: “In fact, the Court found that the plaintiff did not exercise care for his own safety as a pedestrian. The plaintiff was not entitled, in an unexpected manoeuvre, to dart across the road without exercising the required caution. The Court followed the approach of Luck J. in the unreported case of Roderick Bernard v. Samuel Sirkissoon HCA 951 of 1984. Lucky J said at page 5: ‘The plaintiff pleaded that he was crossing the road, indeed he was, he had passed between two parked vehicles, but he had to cross a part of the road where there were moving vehicles. He owed the other users a duty to proceed with care, I think, to stay out of the path of vehicles. Apparently, his left foot was in the way, this is based upon the evidence of the independent witness, Hills, who said, ‘he put his left foot forward and the car coming down bounce him.’ ”
Pedestrians who attempt to cross roadways owe a duty of care to stay out of the path of vehicles and do not have a right of way that supersedes that of motorists.
This does not mean that motorists can collide with pedestrians with impunity. Motorists owe a duty to obey traffic regulations, to take evasive measures to avoid accidents and, where negligent, for example by driving in excess of the speed limit or in an unlawful manner such as illegally overtaking, they will be held liable in negligence and, where appropriate, for criminal prosecution, such as causing death by dangerous driving or other road traffic offences set out in the Motor Vehicle and Road Traffic Act Chap. 48:50.
The law imposes duties on both motors and pedestrians alike and each should be made aware of this fact. In other countries, particularly in highways, the laws prohibit any pedestrian presence and even imposes fines for 'jaywalking'. Perhaps the layout and haphazard development of our road systems precludes such laws at this present time. They deserve future consideration.
As with everyone else, our sympathy goes out to the victims and their families who suffered in the recent accident in Sea Lots and nothing contained here should detract from this.
 HCA No. 6421 of 1988 (unreported) decided on 23 July 2004  Ibid. at page 5