Whose Fault? Allocating Liability between Cyclists and Pedestrians under Victorian Civil Law

Cycling and walking rates are increasing within Victoria’s transport system amid worsening traffic congestion, health considerations, and the COVID-19 pandemic. While the 'Transport Accident Act 1986' (Vic) creates a no-fault compensation scheme for injuries arising from collisions involving a motor vehicle, it does not apply comprehensively to collisions involving cyclists and/or pedestrians. Allocation of liability between these road users is key for injured cyclists and/or pedestrians to obtain compensation for injury and is an important indicator for road safety research and policymaking. This article considers allocation of liability between cyclists and/or pedestrians in negligence and considers the challenges posed by the increasing use of personal mobility and leisure devices. Gaps in the existing framework could be closed by adopting alternative liability paradigms, which this article considers in detail. In conclusion, it is suggested that a strict liability approach ought to be adopted as the foundation for future law reform.