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Case goes to Court of Appeal and could have implications for cyclists

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.
 

Born in Scotland, Simon moved to London aged seven and now lives in the Oxfordshire Cotswolds with his miniature schnauzer, Elodie. He fell in love with cycling one Saturday morning in 1994 while living in Italy when Milan-San Remo went past his front door. A daily cycle commuter in London back before riding to work started to boom, he's been news editor at road.cc since 2009. Handily for work, he speaks French and Italian. He doesn't get to ride his Colnago as often as he'd like, and freely admits he's much more adept at cooking than fettling with bikes.

54 comments

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rogan [2 posts] 3 years ago
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If a driver in a 2012 BMW, hits another driver out for a drive in his pride and joy 70s rebuild, do insurance companies place blame on the injured because his car doesn't have 400 airbags in the door alone? No. What a load of bollocks this is.

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Gkam84 [9092 posts] 3 years ago
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What a crock....You don't wear Hi Vis then you get hit, you have to accept some responsibly. I want to see EVERYONE that walks ANYWHERE in Hi Vis now....

Why not get everyone to wear body armour, full face motorcycle helmets aswell while at it

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Joselito [160 posts] 3 years ago
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Am I going to buy insurance from Churchill in the future?
Ah, no.
Boycott them and watch them squirm.

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velophilia [39 posts] 3 years ago
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Disgusting. Insurance leeches.

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md6 [181 posts] 3 years ago
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Having worked in the industry in the past, I can say that insurers are the lowest of the low, and will try virtually anything to avoid paying a claim. That said, this takes things to a new low. I will never use Churchill or any related entity, although i suspect they aren't the only ones to try this type of thing.

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benb [81 posts] 3 years ago
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You can't really blame Churchill for attempting to minimise their losses - it's the corporate insurance system that obliges them to do that. Any other insurance company would do the same.

Drivers need to expect pedestrians in the roadway, especially on lanes with no pavement, and drive accordingly.

Even if she was dressed entirely in black, I would expect a normal set of headlights to pick her out, so if the driver still hit her, he must have either been driving too fast or he didn't look properly.

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iambrianjones [3 posts] 3 years ago
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Perhaps the local council is culpable for not ensuring pedestrians have a safe environment to walk in at night?

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notfastenough [3715 posts] 3 years ago
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Must be the victims fault.

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pedalingparamedic [94 posts] 3 years ago
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All road users (and judges) please note:
You MUST be able to stop in the distance you can see to be clear.
If you can't do this, you're liable.

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Paul M [360 posts] 3 years ago
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benb wrote:

You can't really blame Churchill for attempting to minimise their losses - it's the corporate insurance system that obliges them to do that. Any other insurance company would do the same.

Drivers need to expect pedestrians in the roadway, especially on lanes with no pavement, and drive accordingly.

Even if she was dressed entirely in black, I would expect a normal set of headlights to pick her out, so if the driver still hit her, he must have either been driving too fast or he didn't look properly.

Yes, you can. I have not so far heard of any other insurer making such an outrageous claim.

All I can say is that it shows up the illogicality of distinguishing between someone walking on a road and someone cycling on it. Neither shoudl be subject to an assumption that they are takig on the motorist's responsibility for them.

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Paul M [360 posts] 3 years ago
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This case just goies to show how vital it is to introduce strict liability. Thi spoor girl has already waited nearly 4 years for justice when she clearly cannot afford to wait a single day. She will evidently have to wait longer while the appeals process plays out.

Strict liability would establish that a motorist has liability to pay redress - covered coimpulsorily by insurance - unless they can PROVE that the victim is at fault. The rule applies in any circumstance involving a smaller/more vulnerale road user and a larger/less vulnerable one, eg a Fiesta driver struck by a 44 tonne artic. It doesn't seek to apportion blame - the liablity is independent of fault - and the estimated cost adds about £50 to the average annual car insurance premium - about half what fraudulent whiplash claims already cost.

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Roberj4 [221 posts] 3 years ago
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"I'm so sorry 'your Honor' for knocking down that cyclist, I was temporarily blinded from the glare of the day-glow clothing"!!

I wonder which side of the road the girl was walking on. Surly if she was walking the opposite side of the road to the car, the driver/insurance must accept total responsibility. If not then the Insurance must take into account the girls age (as a minor) who may not have known, or told the correct side of the road to walk. The distress this must be causing the family they should just settle and let the family move on.

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Simon E [2852 posts] 3 years ago
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md6 wrote:

Having worked in the industry in the past, I can say that insurers are the lowest of the low, and will try virtually anything to avoid paying a claim. That said, this takes things to a new low.

@md6, you confirmed my suspicions
 2

The following is a brief message to Churchill Insurance and their legal vultures:

F**K OFF!

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vsmith1 [65 posts] 3 years ago
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Does the Highway Code say that pedestrians should wear such things in such circumstances?

I think not.

But it will say that it is the motorist who needs to take care of other road users.

I rest my case.

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benb [81 posts] 3 years ago
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Quote:

I have not so far heard of any other insurer making such an outrageous claim.

Well I'm not aware of a similar case - this is fairly uncommon.

I would need some convincing (i.e. a similar case) that other insurance companies wouldn't also appeal.

I'm not saying they should - just that they would.

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paulmerrett [3 posts] 3 years ago
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Why oh why do they always try to blame the victim, can they not just behave responsibly for once

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sporran [42 posts] 3 years ago
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benb wrote:

You can't really blame Churchill for attempting to minimise their losses - it's the corporate insurance system that obliges them to do that. Any other insurance company would do the same.

Drivers need to expect pedestrians in the roadway, especially on lanes with no pavement, and drive accordingly.

Even if she was dressed entirely in black, I would expect a normal set of headlights to pick her out, so if the driver still hit her, he must have either been driving too fast or he didn't look properly.

Nail on the head. Of course it can be difficult to pick out someone dressed in dark clothing at night, but if you don't see them in time then you're going too fast.

And even hi-viz clothing will be no help if the driver meets the pedestrian on a blind corner and they're travelling too quickly.

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Al__S [1083 posts] 3 years ago
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vsmith1 wrote:

Does the Highway Code say that pedestrians should wear such things in such circumstances?

I think not.

But it will say that it is the motorist who needs to take care of other road users.

I rest my case.

Actually, Rule 3 does suggest it however it doesn't even use the foreceful "Should" used in some Rules; it certainly doesn't use "MUST" which would idicate a statutory obligation.

Regardless, the case is dangerous victim blaming nonsense, and what is worse is the point that is being argued is that a 13 yr old should not be expected to do what an adult would be expected to do- ie the High Court has effectively ruled (though it would hopefully not be a precedent) that were this an adult it would have been contributary negligence to not wear hi vis. This is scary.

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Some Fella [890 posts] 3 years ago
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My contempt for insurance companies grows ever deeper.
How do these people sleep at night?

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Jonathing [73 posts] 3 years ago
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Surely hi-viz only works when the driver is looking where they are going?

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cidermart [492 posts] 3 years ago
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Some Fella wrote:

My contempt for insurance companies grows ever deeper.
How do these people sleep at night?

Seconded insurance companies are vermin of the lowest order.

I suppose the next one will be "Well the victims should have worn flak jackets if they didn't want to get shot how can it be my clients fault that they died me lud".

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Jonnyd [27 posts] 3 years ago
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This is just disgusting....strict liability as someone mentioned above, really needs to be used in this country, it's the only way that makes sense. How can we make this "blame the victim" culture come to an end?

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therevokid [972 posts] 3 years ago
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pedalingparamedic wrote:

All road users (and judges) please note:
You MUST be able to stop in the distance you can see to be clear.
If you can't do this, you're liable.

This never seems to get brought up does it ?????

I was just about to go car insurance hunting - guess
who wont be on the list !

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ubercurmudgeon [169 posts] 3 years ago
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All those supposedly progressive alternative comedians from the 80s and 90s who have since done commercials for Churchill (and other insurers) must be really proud of themselves when they hear of stories like this.

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mikeprytherch [223 posts] 3 years ago
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I ride a motorbike as well as a bicycle, let me tell you this is VERY common, almost every biker I know who has had an accident the insurance company has tried to reduce their claim with contributory negligence, be it Hi-Viz, Speed, Not having a white helmet (I kid you not).

I was hit buy a parked car that decided to pull out, they tried it on with me for not having Hi-Viz clothing on, I was lucky as I was in fact wearing a Hi-Viz and after the driver of the car confirmed this they paid out in full, they are the lowest of the low, that Hi-Viz jacket really saved me from being knocked off !

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paulfg42 [393 posts] 3 years ago
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Scumbag insurers. How do folk like that sleep at night?

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ron611087 [352 posts] 3 years ago
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The law requires a person to be at least 18 and to have passed a test to show that they know the HW code and can competently drive a vehicle. The victim in this instance is 13 and has passed no test but Churchill is arguing she shares liability for having the misfortune of being in the same public space driver decided to use for speeding?

Any judge or jury that buy's that is warped.

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Matt_S [281 posts] 3 years ago
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paulfg42 wrote:

Scumbag insurers. How do folk like that sleep at night?

In a fucking massive bed, in a fucking massive mansion.

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jackson2times [3 posts] 3 years ago
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I think everybody knows, that the first thing insurance companies do when a claim is submtted, is how do we avoid paying out. If you have ever made a claim, for anything you will know all the questions you have to go through, if you speak to them on the phone, it is recorded, then they will ask you the same questions again to see if there is any variation in your answers, at that point you have lost your claim

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northstar [1108 posts] 3 years ago
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vsmith1 wrote:

Does the Highway Code say that pedestrians should wear such things in such circumstances?

I think not.

But it will say that it is the motorist who needs to take care of other road users.

I rest my case.

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