Insurer tries to cut damages pay out to teenage pedestrian due to her lack of hi vis clothing on country road

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

by Simon_MacMichael   February 6, 2013  

Justice (Lonpicman, Wikimedia Commons)

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.
 

54 user comments

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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 !

posted by mikeprytherch [162 posts]
5th February 2013 - 19:22

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

posted by paulfg42 [339 posts]
5th February 2013 - 19:57

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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.

posted by ron611087 [16 posts]
5th February 2013 - 20:18

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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.

posted by Matt_S [175 posts]
5th February 2013 - 20:39

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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

posted by jackson2times [3 posts]
5th February 2013 - 21:19

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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.

posted by northstar [784 posts]
5th February 2013 - 21:36

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Matt_S wrote:
paulfg42 wrote:
Scumbag insurers. How do folk like that sleep at night?

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

Ha ha ha ha!

That is the funniest thing I've read for a while, it genuinely made me laugh out loud.

Simon E's picture

posted by Simon E [1733 posts]
5th February 2013 - 21:38

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Typical of this insurance company.Churchill whose motto should be "Oh no" not "oh yes".
I was hit by a driver back in December as she drove out of a side street and hit me broadsides she admitted liability and the police were witness to the accident. Still this company refused to pay for the replacement of the snapped carbon bike and offered me £350 instead of £2225 for the bike and other bits . I refused and stated that I would have to go via a solicitor," If that's what you want to do " was their attitude ,so I did and a year and two months later still waiting for the now personal injury claim .They did have to pay up for the bike though .and also by the time the case is over they will have paid £10,000 in legal fees . the only way to deal with these companies is to boycott them and cancel any policies with them .another example is Friends life see the story behind this bunch of crooks. www.change.org/nicsfight

posted by rickallison [7 posts]
5th February 2013 - 22:09

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Churchill are owned by Direct Line Group. Direct Line Group are owned by RBS. RBS are 82% owned by the UK Government.

So it's (pretty much) YOUR insurance firm, earning YOU revenue (£4.5Bn last year, BTW) that are doing this.

Angry? Write to your MP. Close your RBS account. Cancel your Direct Line policy.

Someone really should set up a website a la the NoTW takedown, to give a focus for all the crossness out there at this move by a company owned mostly by us.

I was told there would be Cake. Luckily there's http://TestValleyCC.org.uk

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posted by KiwiMike [294 posts]
6th February 2013 - 0:17

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ubercurmudgeon wrote:
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.

One was sacked by Churchill for picking upn a drink driving conviction, another has just been given the boot for reaching 12 points on speeding offences resulting in a driving ban.

posted by Al__S [401 posts]
6th February 2013 - 8:31

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I might be missing something here, but does anyone have any links to any social media they may use? I've found a couple of accounts the appear to be dormant on Twitter.

posted by farrell [940 posts]
6th February 2013 - 9:18

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Quote:
...road, described as “narrow and bending” and which had no pavement, pedestrians instead having to use the grass verge

Sorry, no. Where a separate footway is not provided, pedestrians have to take their chances on the road. Though it is advisable for them to be ready to leap onto the grass verge at very short notice should an inconsiderate/inattentive driver come around the corner and fail to notice them.

Drivers should be aware of the likelihood of pedestrians on roads such as this and adjust their driving accordingly. Disgusting behaviour from the insurer in this case, but others have said, only par for the course.

I think it's fair to say that many people in rural areas will drive relatively short journeys (even to and from the pub) because they feel it is not safe to walk on the roads, due to the "roads are for cars" attitude that is so prevalent.

posted by Bhachgen [69 posts]
6th February 2013 - 9:43

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KiwiMike wrote:
Churchill are owned by Direct Line Group. Direct Line Group are owned by RBS. RBS are 82% owned by the UK Government.

No longer the case (sold off in 2012).

http://en.wikipedia.org/wiki/Direct_Line

Am I right in thinking: the implication of this appeal, should it succeed, is that anybody leaving the house after dark without hi-viz would be found negligent in the case of an accident?

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posted by phy2sll [21 posts]
6th February 2013 - 11:37

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Direct Line is a publicly listed company. You can buy shares in it and that entitles you to go to the Annual General Meeting and ask awkward questions of the Board.

Just a thought.... Wink

I'm a human being, God damn it! My life has value. I’m as mad as hell and I’m not going to take this anymore.

posted by Carl [133 posts]
6th February 2013 - 12:58

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Do they have a meeting coming up anytime soon?

If so I suggest an en masse visit by pedestrians and cyclists to spend our time bumping in to the directors and saying "Sorry, you didnt have Hi-vis on, I didnt see you there", or bumping into their cars and saying "Sorry, I didnt see your car there as it wasn't painted a violent shade of fucking yellow".

posted by farrell [940 posts]
6th February 2013 - 15:02

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Bhachgen wrote:
I think it's fair to say that many people in rural areas will drive relatively short journeys (even to and from the pub) because they feel it is not safe to walk on the roads, due to the "roads are for cars" attitude that is so prevalent.

What you find is people who live in the countryside drive everywhere because its 'simply to far to walk' or aleast thats what i get told by work mates. They also refuse to accept they should slow down on windy blind corners or 'they would never get anywhere' as their speed would be to low... my answer... well dont F*%&KING live there then!

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posted by STATO [394 posts]
6th February 2013 - 19:36

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They should look at this just as it is....an accident.

It is not always easy to see pedestrians (or cyclists for that matter) if it is dark, the road is not lit and they are wearing dark clothes.

While the article states that the driver was going too fast for the type of road in the dark, it may be that the road was the national speed limit, as many country roads are.

When kids in schools are taught about the highway code it is always recommended to them that they wear bright clothing if walking in unlit areas in the dark, and also when cycling in the dark.

I don't think it was the girl's fault that the driver hit her, and she may have been wearing bright clothes, but if she wasn't it may have helped the driver to see her sooner if she was.

The driver did the right thing and stopped to look for her, and got help. He was also insured to cover him for things such as accidents. In a case where the girl has been seriously injured the insurance company should just pay out.

posted by Flippa [35 posts]
6th February 2013 - 20:05

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Flippa wrote:
The driver did the right thing and stopped to look for her, and got help.

Are you a cartoon?

posted by farrell [940 posts]
7th February 2013 - 1:07

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It's quite common to see horse riders in hi vis - with hi vis ankle bands on their horses. It's a sad state of affairs that hi vis is taking over from common sense driving. I still assume on narrow roads that I'll meet a tractor/horse/car or walker around every bend. Unfortunately we are being asked to cater for those that assume there is nothing around every bend and will not drive carefully.

MercuryOne

Silly me. You're probably right....

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posted by MercuryOne [920 posts]
7th February 2013 - 7:43

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Some more details on the Daily Mail this is money site here:

http://www.thisismoney.co.uk/news/article-2274372/Churchill-insurance-ap...

Their article says that she was walking on the grass verge and part of the insurers argument was as a horse rider she should have known to wear hi-viz clothing on a dark road! So as cyclists I assume if we get run over as a pedestrian the same argument will be used against us. Over a thousand comments already the most popular being anyone against Churchill the least anyone trying to pass blame onto victim. Hopefully Churchill will have lost its case and payed compensation before they go bankrupt.

Paul W

posted by PaulVWatts [111 posts]
7th February 2013 - 9:14

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Flippa wrote:
While the article states that the driver was going too fast for the type of road in the dark, it may be that the road was the national speed limit, as many country roads are.

What does the speed limit have to do with it? Just because there's a 60mph limit doesn't mean that it's safe to drive at 60mph.

posted by David Portland [60 posts]
7th February 2013 - 9:33

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This is outrageous and the outcome will surely set a precedent that, if it goes the wrong way, will affect us all (badly).

This highlights perfectly how broken/conflicted the insurance system is.

I'd never use Churchill again having read about this, however I am sure that all insurers would act the same. Stick 'em all in the same snake pit along with the bankers.

I really feel for this girl and her family - stuff of nightmares.

Ride For Precious Lives - Annual Cornwall to Bristol charity ride.

posted by graphite [55 posts]
7th February 2013 - 9:37

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Not to be pedantic but.. everybody is refering to this as an accident it was not it was an incident.

even if it were an "accident" there is a very old saying that goes... Accidents do not happen, they are caused. (laziness inattentiveness pure bloody mindedness not looking where you're going and stupidity)

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posted by FATBEGGARONABIKE [466 posts]
7th February 2013 - 9:51

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Flippa wrote:
It is not always easy to see pedestrians (or cyclists for that matter) if it is dark, the road is not lit and they are wearing dark clothes.

that's why motorists need to take care when they're piloting two tons of metal around the back lanes after dark.

Flippa wrote:
While the article states that the driver was going too fast for the type of road in the dark, it may be that the road was the national speed limit, as many country roads are.

it's a limit, not a target.

Dave Atkinson's picture

posted by Dave Atkinson [6957 posts]
7th February 2013 - 10:12

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As a cyclist i wear bright clothing, and i have noticed that cyclists are starting to wear day running lights.

Road users who choose to be hard to see are increasing the risk that they will be involved in an accident. Camouflage works after all.

Cycling i once almost hit a jogger on a winding country lane, who was dressed in black and running with headphones. That person was taking no responsibility for their own safety.

The actions you take, whether it is going to fast, or being camouflaged, reduce the chances of other road users preserving the safety margin you are reducing.

posted by birzzles [8 posts]
7th February 2013 - 10:31

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'Cycling i once almost hit a jogger on a winding country lane, who was dressed in black and running with headphones. That person was taking no responsibility for their own safety.'

Sounds as though you need to be more aware of what's going on around you when you ride...

posted by andyp [597 posts]
7th February 2013 - 11:16

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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.

There was a case in Scotland last year where the driver of a bus hit cyclists and got away with it due to the 'low morning sun' blinding him and preventing him from seeing them.
The fact he hadnt cleaned the window properly didnt make any difference either.
This meant the driver wasnt held responsible.
Insurance did pay out, the big issue being drivers not being responsible regardless of speed/conditions etc.

posted by Farky [173 posts]
7th February 2013 - 11:25

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It's interesting how many comments there are on the Daily Mail page.

If I was a shareholder attending their AGM I'd ask: 'Does the precedent this case might set, or the financial savings it might generate justify the reputational risk you are taking in the eyes of a generally hostile public?'

I'm a human being, God damn it! My life has value. I’m as mad as hell and I’m not going to take this anymore.

posted by Carl [133 posts]
7th February 2013 - 12:05

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Dave Atkinson wrote:
Flippa wrote:
It is not always easy to see pedestrians (or cyclists for that matter) if it is dark, the road is not lit and they are wearing dark clothes.

that's why motorists need to take care when they're piloting two tons of metal around the back lanes after dark.

Flippa wrote:
While the article states that the driver was going too fast for the type of road in the dark, it may be that the road was the national speed limit, as many country roads are.

it's a limit, not a target.


Well said Dave, that last sentence says it all. So many drivers seem to think that 1mph under the speed limit is acceptable under all circumstances.

posted by The Rumpo Kid [590 posts]
7th February 2013 - 14:02

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by extension of this, there would surely be contributory negligence on the part of any driver in a car without a four star NCAP pedestrian protection rating.

nickr

posted by nickr [4 posts]
7th February 2013 - 14:12

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