Published: 29 March 2017
Author: Ryan Carlisle Thomas

Are pedestrian 'phone zombies' covered by the TAC if injured?

Those of us working in offices in built up areas will recognise the many people walking the streets who have been described in the media as 'phone zombies'.

So glued are they to their phones that they can literally walk into trouble and be caught up in a road accident.

So what happens if they are injured? Will the TAC cover them?

Pedestrian distraction is a real issue and one that is becoming more prevalent as technology advances.

The facts are that 40 pedestrians died in Victoria last year, many of those happened in circumstances where pedestrians were crossing the road, with approximately another 500 seriously injured.

In an effort to reduce the number of these types of accidents, flashing tactile markers have now been installed at the intersection of Swanston and Little Collins Streets in the Melbourne CBD on a one year trial. The markers, which will be operational 24/7, will glow green or red and flash red when the signal is amber.

Inspiration for the idea was borrowed from South Korea where similar systems were installed; pedestrian injuries fell 20% and the number of fatalities was almost cut in half over a five-year period. The concept may be rolled out across other intersections throughout the CBD  that are subject to high foot traffic.

Does the TAC cover pedestrian injuries?

No-fault TAC benefits are payable to those whose injuries are caused by the driving of a motor vehicle, or arise out of the use of a motor vehicle. No-fault benefits include the payment of reasonable medical and like expenses and loss of earning weekly benefits for any period(s) of time off work. This is no-fault compensation, meaning that there is no need to prove the fault of anybody in the accident, merely that you have suffered injuries as a result of a transport accident.

If a loved one has lost their life in a collision as a pedestrian, there are still substantial ‘no-fault’ benefits claimable from the TAC. But there are strict time limits to make any claims, so you should always seek advice at an early stage to avoid being precluded from making any claims.

What about collisions with cyclists?

However, if the collision is with a cyclist alone (i.e. not involving a motor vehicle), the TAC scheme will not cover the person involved. Bicycles, as the legislation presently reads, are not considered a ‘motor vehicle’ and do not attract any coverage whatsoever. This is something that is increasingly becoming a raging topic of discussion and one we are keen to see addressed as more and more look to alternative ways to traverse our growing city.

Only pedestrians injured in an accident involving a car, bus, tram, train or motorcycle are eligible for TAC compensation. There are some circumstances where TAC is not liable to pay no-fault benefits, but these mostly relate to the driving of a motor vehicle (drink-driving and other offences under the Road Safety Act 1986) and any claims made by at-fault drivers. Pedestrians’ conduct is not in issue in respect of no-fault entitlements.

What about claims for lump sum compensation?

There are two primary forms of lump sum compensation:

1. No-fault compensation (commonly referred to as impairment benefits); and
2. At-fault compensation (commonly referred to as a common law claim for damages in negligence).

If someone is distracted and at-fault in a collision causing injuries, there is still scope to make claims for an impairment benefits provided the injuries satisfy threshold levels in the legislation (in addition and quite separately to the no-fault benefits above).

If the injured pedestrian who is at-fault in a collision makes a claim seeking damages in negligence at common law, it’s possible that any settlement or award of damages may be reduced by some amount to take into account the failure of that injured pedestrian to take care of themselves. Much depends on the circumstances of the case, and there is no ‘blanket rule’ that is applied to every case. In many cases, any ‘contributory negligence’ (negligence on the claimant’s part that contributed to the accident) may mean a mere reduction as opposed to the striking out of entitlements altogether. Injured transport users should always investigate their entitlements at the very least, and is best done with the assistance of a lawyer.

However, if the fault lies with the motor vehicle colliding with the pedestrian, then liability would not be so much in issue; the injured pedestrian would still need to satisfy the TAC that they have suffered a ‘serious injury’ and that the accident has caused those injuries.