Bethany Probert (A Child) by her litigation friend and mother Joanna Probert) –v- Paul Moore: The High Court of Justice Queen’s Bench Division

On 3 December 2009 the Defendant was driving to work at around 17:00 along a single carriageway that had no lighting and upon which a 60 mile per hour limit was imposed. The Defendant used the road daily and was therefore aware of the layout and condition.

The Claimant was a pedestrian walking in the same direction as the Defendant, and was wearing dark clothing and was probably listening to her iPod at the time through earphones. The Claimant was walking in the road as a result of overhanging greenery and a lack of a footpath along this particular road.

Unfortunately the Defendant’s vehicle hit the Claimant, causing her multiple injuries including a traumatic brain injury.

The Defendant stated that he was driving at around 50 miles per hour and that he did not see the Claimant until he hit her. The Defendant stated that he was looking on the opposite side of the road and had positioned himself to the left hand side of his lane so as not to collide with any oncoming traffic.

Court Findings

The Court found that the road was regularly used by cyclists, pedestrians, joggers and dog walkers.

They found that a reasonably prudent driver would not have exceeded 40 to 45 miles per hour in the circumstances, therefore 50 miles per hour was too fast. The Court found that the Defendant should have been aware of other road users and should have reduced his speed as a result of oncoming vehicles. The Court found that the Defendant moving over to the left side of his lane to avoid oncoming vehicles meant that he was not focused on the road ahead of him and therefore any possibility of avoiding the Claimant had been lost by the Defendant’s actions.

Liability was therefore established against the Defendant.

Contributory negligence?

With regards to the allegations of contributory negligence against the Claimant, which were based upon the Claimant wearing dark clothing, listening to her iPod, and that she should have waited for her mother rather than walked along the road in the dark, the Court found that given the Claimant’s age, the same degree of responsibility for her actions could not be attributed to her as was attributed to adults.

Even if the Claimant was wearing high visibility clothing, the Defendant would not have seen the Claimant as he was not looking in front of him, but was looking at the oncoming traffic in the opposite lane. Also, even if the Claimant had been wearing earphones and listening to her iPod, the oncoming traffic would have obscured the sound of the Defendant approaching.

The Defendant was therefore found 100% responsible for the Claimant’s claim.