An insurance company says that a teenage girl left brain damaged after she was hit by a car on a country lane at night is partly to blame for her injuries because she should have known to take the precaution of wearing reflective clothing. The case, which is due to go before the Court of Appeal, echoes previous ones in which insurers have attempted to establish contributory negligence on the part of cyclists not wearing helmets.

Should the Court of Appeal establish that there was an element of contributory negligence on the victim’s part, the case could have repercussions on cyclists in terms of what they choose to wear when on their bikes.

Pointing out that in many of the UK's fellow EU Member States the legal system presumes liability on the drivers' part in incidents in which more vulnerable road users suffer death or injury, Roger Geffen, Campaigns and Policy Director at National Cyclists' Organisation CTC said: "In many other western European countries, a 13 year old girl brain-damaged in a car collision would be presumed to be entitled to compensation from the driver's insurance.

"Yet in Britain, she and her family not only have to deal with the aftermath of her horrific injury, but are also now facing the trauma of proving that it was not her fault. 

"It is high time we reversed this creeping assumption that injured pedestrians and cyclists are to blame for not warning the driver that they were there. 

"If the Government wants to encourage more people to walk and cycle, it must provide much better legal protection for those who do so, expecially for children and older people."

Bethany Probert was aged 13 at the time of the incident, which took place near Silverstone, Northamptonshire, in 2009, reports The Times [£]. She was returning home on foot from the stables where she kept her horse, having decided to walk instead of waiting for her mother to come and give her a lift home.

As she walked along the unlit road, described as “narrow and bending” and which had no pavement, pedestrians instead having to use the grass verge, Bethany, now aged 16, was struck by a car driven by fitter Paul Moore, who was on his way to work and said he had not seen the teenager.

After the collision, he searched for her and discovered her in a ditch, his actions said to have saved her life.

Speaking to The Times, Bethany’s mother Jo said: “Her head was just open like a book. For a while they just dripped morphine in. They didn’t expect her to live. I am not going to say the word ‘thankful’ to the driver but I don’t feel animosity.”

Moore’s insurers, Churchill, admit liability on his part but are seeking to reduce the quantum of damages, which may amount to £1 million, by arguing that given her experience of horse riding Bethany, now aged 16, should have known to take the precaution of high visibility clothing.

Lawyers acting on behalf of Churchill said that Bethany “should have been obvious to a girl of her age.”

That argument was rejected by High Court judge, Mr David Pittaway, QC, who said: “An ordinary 13½-year-old should not be expected to consider taking the same level of precautions as an adult.

“It would be asking too much of her to say that she should not have started to walk home at all or should not have started to walk home without borrowing a high-visibility jacket, reflective markings or torch from the stables. Her decision to walk home was ill-informed but not culpable.”

He added that the speed of Moore’s vehicle, 50 miles an hour at the time of impact, was too high for the type of road and fact he was driving at night, although the speed limit in force was not reported.

In reaching his decision, the judge was upholding a principle established in a 1966 decision by the Court of Appeal regarding a 13-year-old girl who had walked into the path of an approaching vehicle.

The test to be used was that the behaviour should be assessed in line with the behaviour of an ordinary child, with the Lord Justice Salmon saying in that case: 
“I do not mean a paragon of prudence; nor do I mean a scatterbrained child; but the ordinary child of 13,” he said.

While the judge in Bethany’s case has awarded full damages against Moore to help adapt a new home for her condition and compensation for her injuries, permission has been granted for the decision to be challenged in the Court of Appeal, with Churchill saying: “While we accept that our insured was liable in part for the accident, we are appealing the decision that he was entirely to blame.”

RJW Slater & Gordon, the firm of solicitors acting for Bethany, commented: “This is the first case on the question of an accident victim’s culpability for walking on the road at night for more than 20 years and the first case of a child’s culpability.”

An article on contributory negligence on the website of national cyclists’ organisation CTC discusses attempts made in recent years by insurance companies to establish an element of contributory negligence in cases where cyclists have been injured who were not wearing helmets at the time of collision.

Insurers have even tried to get judges to accept that such claimed contributory negligence applies in cases where involving child cyclists for example where no head injury was involved.

One judge cited in the CTC article suggested that arguments that cyclists not wearing helmets could carry a proportion of blame, although Paul Kitson of Russel Jones & Walker, CTC’s solicitors, said he believed that such remarks were made obiter dicta – observations made by a judge that are of general application rather than being pertinent to the case in question – and would therefore not be binding.