You’re in a rush.
It’s a dark, wet Monday morning in January.
You want to cross the main road on foot at traffic lights, using the pedestrian crossing there; but the lights are green for vehicles – and red for you to cross.
On the approach to the traffic lights for vehicles, there are two bus stops. It’s a predominantly residential area.
You decide you have to risk crossing on red.
Dashing onto the crossing, you suddenly realise an approaching car is bearing down on you. It’s about 5m away and travelling close to the speed limit of 30mph. Your brain freezes with panic. You’ve misjudged the speed of the oncoming vehicle.
You’re rooted to the spot. Paralysed with fear. It’s too late to get out of the way.
Though the car driver instinctively swerves to avoid you, having only noticed you late, the collision is inevitable. The impact throws you up onto the bonnet. Your head hits the nearside windscreen, causing a “bullseye” break in the glass – i.e. a spider’s web-like fracture of the laminated glass.
You land on the ground 11m beyond the pedestrian crossing.
You suffer a broken collarbone and a serious head injury.
The car driver is not prosecuted. There are no criminal law consequences for the driver.
The motorist maintains that the accident was entirely your fault.
In your view, the car was going at an excessive speed in the circumstances.
- What about a civil claim for a personal injury compensation?
- Is that a possibility or would the accident be classed as “entirely the fault of the pedestrian “?
- Would it make a difference if you, the pedestrian, were 12 years old and on your way to school?
We’ll consider the answer to these questions in this article. We will refer to different areas of discussion from the real court case in which they came up. Firstly, we’ll look at the detailed facts as found to be established by the court. Secondly, we’ll consider the legal principles that applied. And, finally, our focus will turn to the learning points for drivers, in particular, because the risk of this scenario “happening to anyone” will seem uncomfortably possible to many of us.
So, firstly, let’s get a grasp of the details of the case and see how the judge analysed the evidence, with assistance from expert witnesses, to reach the court’s view of the facts.
1. The facts as found to be proven by the court.
As well as evidence from witnesses – including a road traffic accident reconstruction expert for each party – the court had available to it dashcam footage from the BMW and CCTV film from a nearby takeaway restaurant.
- The 12-year-old girl who was injured was struck by a BMW 3i travelling at 28 mph (against a speed limit of 30 mph).
- The “safe” speed for a car in the circumstances, according to the judge, was only 20 mph.
Why was it only reasonable to drive at 20 mph in the circumstances?
Because of the following factors: the darkness; the standing water on the road and the rain the two bus stops; the pedestrian crossing; it was a substantially residential district; the fact that, as the driver accepted, children could be in the vicinity around the nearby bus stop on a school morning.
- The traffic lights were green for traffic for about 8 seconds before the accident.
- The child was stationary at the crossing for 2.3 seconds.
- The child started to move into the carriageway 0.7 seconds before the collision.
- The child’s average speed once she started moving to cross was around 4.8 metres per second.
- The child was on the carriageway for 0.4 seconds before impact occurred.
- The child was moving on the carriageway for 0.1 seconds.
- The child was stationary on the carriageway (i.e. “frozen” on seeing the approaching vehicle she could not evade) for 0.3 seconds.
- While she was moving on the carriageway, she covered approximately 1 metre (i.e. in 0.1 seconds).
- The car driver ought to have been able to see the pedestrian from a distance of about 30 metres.
The last of these bullet points was probably the most crucial factual finding: i.e. the fact that the girl pedestrian was visible from 30m away.
2. How did the court analyse these facts and apply the law to them?
As in most road traffic accidents, the Highway Code had a part to play.
A reasonable speed in all the circumstances was to be considered in light of Rule 125 of the Highway Code:
Rule 125. The speed limit is the absolute maximum and does not mean that it is safe to drive at that speed irrespective of the conditions. Driving at speeds too fast for the road and driving conditions can be dangerous.
The judge’s opinion was that the 30 mph speed limit must be adjusted to the conditions and a driver must “always” reduce their speed when sharing the road with pedestrians and “particularly” children.
The driver had driven either in breach of, or in a manner inconsistent with Highway Code rules 125 (above), 146, 204, 205, 206 and 207.
Rule 146. try to anticipate what pedestrians and cyclists might do. If pedestrians, particularly children, are looking the other way, they may step out into the road without seeing you.
The road users most at risk from road traffic are pedestrians, in particular children, older adults and disabled people, cyclists, horse riders and motorcyclists. It is particularly important to be aware of children, older adults and disabled people, and learner and inexperienced drivers and riders. In any interaction between road users, those who can cause the greatest harm have the greatest responsibility to reduce the danger or threat they pose to others.
There is a risk of pedestrians, especially children, stepping unexpectedly into the road. You should drive with the safety of children in mind at a speed suitable for the conditions.
Drive carefully and slowly when
• driving past bus and tram stops; pedestrians may emerge suddenly into the road.
Particularly vulnerable pedestrians. These include:
• children and older pedestrians who may not be able to judge your speed and could step into the road in front of you. At 40 mph (64 km/h) your vehicle will probably kill any pedestrians it hits. At 20 mph (32 km/h) there is only a 1 in 20 chance of the pedestrian being killed. So kill your speed.
No breach of the Highway Code will lead to an automatic finding of negligence.
But, in this case, the court was invited to have regard to these various Highway Code rules rules and weigh up their cumulative effect.
The analysis performed by the court involved comparing what had actually happened at 28 mph with what would probably have happened (hypothetically) at 20 mph (the speed the driver ought to have been doing).
Possible hypothetical outcomes included that the collision would have been avoided completely or that the outcome would have been less severe (e.g. because the impact would have been at a reduced speed).
What would have happened at 20 mph?
The parties’ expert witnesses agreed that the driver could have seen the pedestrian from 30m away. At 28 mph, that was 2.2 seconds from the point of impact. At only 20 mph, there would have been more time to the point of possible collision. Translating this time into distance on the ground, there would have been an “extra” 7 metres to the point of impact.
Whilst the numbers could not be treated with the exactness of the outcome of a “scientific experiment “, it was still appropriate to ask what driver and pedestrian might have done if the (actual) 5 metres had been (a hypothetical) 12 metres.
The judge considered it to be likely that the pedestrian would not have frozen. In addition, with the extra time available to her, in broad terms, she would have been able to get herself clear of the danger area in the path of the oncoming car.
In the case of the car driver, it was not just a matter of what they would have done if they had been driving at 20 mph. The court also had to factor in what they would have done if driving according to the legal standard: reasonably and prudently. The standard is the “competent and experienced driver” – this is the reasonable, prudent driver. It’s not a counsel of perfection. It does not demand an ideal, infallible driver.
The judge decided that the car driver’s conduct in the circumstances was below the standard of a reasonable, competent experienced driver. The Highway Code breaches cumulatively amounted to a breach of the duty of care along with excessive speed and a failure to address the risks from the prevailing conditions and the presence of other road users.
In the circumstances the motorist had been negligent.
She was familiar with the route, having driven it for over 10 years. Though she was not driving robotically, she was kind of on autopilot and that resulted in her failing to see the obvious risks around her. As the judge put it:
“(The driver) did not make the reasonable and necessary adjustments for, as the Highway Code puts it, “road users requiring extra care” because children are among “the most vulnerable road users”. That was an approach materially inconsistent with the Highway Code’s safety principles.”
The judge went on: “(Once) one reduces the speed from 28 to 20 mph, by a factor of approximately one third, the numbers significantly change. With that substantially lower driving speed, I am absolutely clear that the outcome is likely to have been different: the claimant would not have been struck by the defendant’s vehicle. I reach that finding of fact on a balance of probabilities. At 20 mph, I find that there are sufficient margins to conclude that it is likely this accident would not have taken place.”
The car driver was negligent and to blame for the accident.
But did the schoolgirl bear a share of the blame/responsibility too?
In the opinion of the judge, the answer was “yes”.
This is a question of contributory negligence.
“I find that her action was negligent, even judged by the standard of 12 year-old children. They would know not to step into a road when vehicles were proceeding through a green light at speed. No one disputes this.”
Applying the standard principles of contributory negligence, it was necessary to make a percentage apportionment to reflect the pedestrian’s share in responsibility for the damage caused by the accident.
In the judge’s view, the pedestrian had made a mistake but that was exactly the reason why the Highway Code emphasised the need for drivers to be cautious around children. The motorist was not having this necessary regard for the presence of children – and also driving too fast for the road conditions. A high burden is placed on drivers. In the context of personal injury law, a car is regarded as a potentially dangerous weapon.
Weighing up all these elements, the judge’s final decision was that the car driver bore the majority of the responsibility for the collision. The apportionment that was fair and reflected the parties’ relative shares was 60 per cent attributed to the car driver and 40 per cent on the part of the pedestrian.
Accordingly, the pedestrian recovered 60% of the full value of her claim.
3. What can we learn from this case?
A green light for traffic at traffic lights is not a “green light” for motorists to drive through at the speed limit.
In most circumstances, drivers must foresee the risk of children running out into the road at a crossing, even if the “red man” is showing.
You possibly did not expect that the accident scenario in this article represented a winnable claim.
Or, at least, that this was a situation in which the car driver would bear the majority of the fault for the accident.
If you have a regular commute to work by road, it is worth noting the risk of “autopilot” vehicle control highlighted in this case. Consider: where are the “emerging hazards” on your route – e.g. vulnerable road users, such as pedestrians (especially children) and traffic lights / pedestrian crossings. Do you need to reconsider and challenge your standard driving practices on your journey to and from work?
20 mph zones are increasingly standard in residential areas but this case reminds us that any speed limit is a maximum.
In fact, for most practical purposes, many 30 mph limits may “truly” mean 20 mph if road conditions are poor.
It did here.
How we can help
If you have any questions arising from this article, please get in touch with us us.
Have a look at the article HERE, if you want to understand more about what will actually happen if you get in touch with us about a possible personal injury compensation claim.
Should it be the case that we are not the best people to help you directly, we’ll do our best to suggest to you a suitable alternative specialist legal adviser (or the best way to find one).
We aim to help people in Moray claim fair and full compensation for personal injury in such a way that it costs you nothing, whether your claim succeeds or not. We are specialist, accredited solicitors – at Grigor & Young LLP, Elgin.
NOTE: The judge’s decision in the case discussed in this article can be found online here.
Links you might like
The following articles cover other aspects of road traffic accidents and may be of interest to you as a result:
- Why the crucial road accident information to get is the registration number
- How Speed Affects the Outcome of Pedestrian Road Accident Collisions
- What are your rights following a road traffic accident that was not your fault?
- Road Traffic Accident Questions Your Solicitor Needs Answered
- What are the main reasons why a driver will be to blame for an accident?