What am I to do for the Safety of Pedestrian and Driver?
If you are ever unfortunate enough to strike a pedestrian in a remote area or any area considered dangerous for whatever reason and you are alone, what are you supposed to do? Stop and risk getting attacked, robbed, and hijacked or worse? Drive away and “worry about it later?”
As a Forensic Road Traffic Collision Reconstruction Specialist, Stan Bezuidenhout has investigated thousands of cases in the capacity of a private investigator, government contractor and specialist police reservist. These are the kinds of cases he has had to piece together, analyse and reconstruct. In so doing, he has personal experience with the arguments that prevail, relating to a driver’s actions, in court. Stan answers as follows:
First – let’s talk about the collision itself. The aspect of it that can get you in trouble.
People tend to think it is easy to “explain away” how a collision occurred. You just tell the truth.
Here is a scenario that I have seen too many times: You were driving, you never saw the pedestrian and you heard a loud bang. You were not sure what you hit, you were scared to stop so you drove home, thinking it must have been an animal. The next day you are visited by police or you go in to report it and then you hear that you are being charged with culpable homicide.
But how wise would it have been to stop (on a dark road, in a remote or dangerous area) on your own? What must you do? What can you do?
In a road traffic collision involving pedestrians and (specifically) fatal pedestrian collisions, a number of “core arguments” are considered. The first and most relevant is the so-called “actions of a reasonable man.”
Now – this “reasonable man” is not an actual person with the same insight, experience and motivations and you and me. No. It is rather a collective reference to the “reasonable thing a person would do, considering all personal, common law and legal duties expected of him or her.”
That’s a mouthful but people often misunderstand it to mean “someone like me.” This is not true.
When it comes to the law, there are a number of statutory and common duties inferred on the driver, which may include:
1. Operating your vehicle with due regard to the prevailing conditions
Many people don’t know this but 120Km/h on a road with a speed limit of 120Km/h is not necessarily a safe speed under all circumstances. In trial, the throw distance of your car lights (on dim or bright), glare caused by approaching vehicles, obstructions (bushes on the side of the road), your Perception Reaction Time (PRT), vehicle design (car, LDV, SUV, Bus or truck), brake system (ABS or not), road surface conditions (dry, wet, etc), stopping distance (with full brake lock-up), your reactions (braking versus swerving, etc), your medical condition (eyesight, medication), intoxication, prior experience and even special training are all considered as possible contributors. All of this can affect the speed at which you CHOSE to travel and frame you in a very negative light if enough are considered and you’re still “barrelling along at 120 Km/h).
Then there is the issue of what a “reasonable man” would expect. Is it in a built-up area, are there other pedestrians around, is the area lit, are there pedestrian warning signs or crossings nearby, how busy the road is, what kind of traffic uses the road, etc. All factors that a “reasonable man” would consider (in the legal context) when “operating his vehicle.”
2. Keeping a proper look-out
This is a tricky one. Whenever a pedestrian is struck by a car the natural tendency is towards considering the actions of the driver over those of the pedestrian. This sounds counter-intuitive since a car is bigger than a man, makes more noise, has lights and moves in a straight line on a predictable path (for the purpose of this argument). But the court also considers your likelihood to be in a position to “take a life” and expects you to take more steps to prevent doing it than it does for the pedestrian to prevent dying from his failure. You are the greater force and it takes you much longer to deviate the outcome of a pedestrian while you cover a much greater distance in a much shorter time. You also have the benefit of sight – you can see further, with the aid of headlights and it is common knowledge (in legal circles, at least) that pedestrians cannot judge the distance of a car accurately – especially where the car is not travelling at the speed they could reasonably expect.
This sounds complicated but remembers this – you are more responsible for preventing a collision than a pedestrian is (at the end of a day).
3. Taking all reasonable steps to prevent a collision
People often think that braking is all that is required. When you see a pedestrian, you break and from that point, there isn’t much you can do. But the law is more complex than this. See – people suffer from what is called incidental evolutionary psychology. They will often drive down a road and see a pedestrian. As long as the pedestrian does what most other pedestrians do and as long as they can “predict” the actions of the pedestrian, they will remain constant in their actions. They will keep driving on at the same speed – people trust that the pedestrian wild act as they predict.
Now – the moment that pedestrian does not act as predicted and steps out onto the roadway stumbles or (relatively) suddenly changes direction, the driver will only act once that act becomes an immediate (rather than sudden) emergency. NOW they will apply brakes, swerve and/or try to avoid a collision – often when it is already too late.
If, however, the driver was awake and alert and knew that the movements of a pedestrian cannot be predicted without any connection to their mental state or intentions, he or she would or could do a whole lot of things differently as a “reasonable man” would: The driver could immediately lift his foot off the accelerator or even slow down (brake) in anticipation of a possible unpredictable act. The law REQUIRES a person to use their horn (hooter) to WARN pedestrians of their approach when they are not looking at your vehicle and they could start to move over, further away from the pedestrian. They might flash their headlights (at night) or even stop completely (if the action of the pedestrian seems totally unpredictable, like in the case of a drunken person stumbling all over the road).
But, unfortunately, you see vehicles pass within centimetres of pedestrians at highway speeds often – clearly illustrating this very point.
4. Failing to stop to establish if there are any injuries or to render assistance you are capable of
The courts do not respond well to any indication of a lack of compassion. If you act in a way that does not conclusively represent the actions of a person of moral value or a person who cares more for those in dire need than for themselves, that would not place themselves in harm’s way to save the life of another, you might find the courts suggesting or even flat-out stating that you displayed no remorse and failed to take responsibility for your actions.
In legal argument, your possible risk is never greater than the pedestrian’s actual need – especially where the injuries are serious. Striking a pedestrian (known as such, or not) and simply driving away is never received well in courts. No matter how good your arguments are later; that you were hijacked before, that others were attacked in the area, that someone was killed and robbed when they stopped or any similar “excuses” are nearly impossible to prove, unless you can show that you took a number of steps a “reasonable man” would have, under the same circumstances.
The list gets longer…
5. Immediate reaction
When striking a pedestrian (or an unknown object), the first instinct of a “reasonable man” is top brake and stop immediately. To ensure that what they hit was not a pedestrian or that the pedestrian they hit is not hurt (seriously) or killed. There is never any excuse for striking a pedestrian and simply driving straight on ahead. Another mistake many drivers make is to stop momentarily but to remain in their vehicle (some distance away) and then driving off. This creates the impression that you considered what happened (what you did) and that you then opted to “run away” – especially where the following steps are not taken:
6. Immediate assistance
Any person will tell you that they will do anything to save a life of another. The Road Traffic Act specifically requires that any person involved in a collision should “render such medical care as their skill or experience allows.” Not at least going to check whether you caused serious injury, whether someone is dying, how seriously they are injured and what you can possibly do to assist, are all actions that can be measured against you in reference to that “reasonable man” we hear so much about.
When you fail to even establish – by personal observation – how serious an injury is or at the very least what you can do to mitigate the risk of a fatality, you could be in serious trouble later. If a person was unconscious but lying on their stomach with their face in a puddle of water and all it would have taken from you would have been to lift their head out of the water to save them, but you failed to render this basic assistance, you could face murder charges since the failure to act is also seen as an actual act, in terms of the law.
7. An immediate call for help
While stopping at night might be seen as irresponsible or dangerous under normal circumstances, because of something that MIGHT happen, leaving another person for dead is irresponsible because of something that did already happen. If you fail to call for police, ambulance and rescue services immediately (or for instance where there is no cellular carrier signal, as soon as reasonably possible), with a full description of what happened, where it happened and with your full particulars and where you can be found, could easily be seen as active steps to avoid detection, association or responsibility.
If you honestly feel unsafe (see people running towards you and you are alone in your vehicle, for instance, and fear for your safety), you should STILL call for help and move only as far as you need to in order to ensure your safety. We have had cases where people have “hit something” and then drive several hundred kilometres home before seeing police at their door the next day and then explaining that they “intended to go and report the accident this morning.”
8. Conservation of evidence
If you strike a pedestrian you should take all reasonable steps to preserve or record all relevant evidence. If you strike a pedestrian at night and – in a worst-case scenario – the pedestrian is killed, there is nothing you can or are skilled to do, you are alone and there is no cellular carrier signal, you should immediately photograph the position of the body first, then drag it off the road if needed and if you are physically able to (yes – you CANNOT just leave a body there if there is any intention to leave!!), then photograph any damage to your car, photograph your own face (to show as best possible that you are sober), photograph your driver’s license (to prove you had it with you), your license disk (to prove that your car was involved) and any landmark or mile marker you can find. Also, photograph you vehicle odometer (mileage) BEFORE you leave the scene. This will help you prove how far you drove, later, and help you prove that you summoned help as soon as reasonably possible.
Then you obviously MUST leave to go and seek help. But drive only far enough to be able to call or summon help. Passing by three police stations, though two town and past hundreds if not thousands of houses or shops to your own house will easily be interpreted as you “going to cover yourself and develop a story first.” Get help as soon as possible. That is as soon as you can!
9. Concealment of evidence
Never ever wash, clean, cover, repair, conceal or withhold any damages, marks, deposits or any other kind of evidence from, of or on your vehicle. Even place all your clothes in a brown paper bag, DO NOT delete any call records or SMS’s from your phone, DO NOT drink any alcohol (even if you desperately “need a drink”) until you have spoken to police and allowed them to examine you, your records and your vehicle.
Anything that goes missing, is cleaned or washed off, concealed or lost might be seen as an effort by you to hide evidence or conceal the truth.
If you consider the complexities contained in all the factors that are at play in a trial involving a pedestrian collision and if you consider how many actions can be used to analyse your efforts against those of a “reasonable man,” you should consider your options very carefully and only ever leave the scene of a pedestrian collision when there is truly NO OTHER OPTION – no matter how much you think it might be a good idea, at the time!