Incidents involving vulnerable road users are a common feature of serious injury claims. It is worth noting two judgments released over the last couple of weeks, in particular to note the findings in relation to contributory negligence.
In Parker v McClaren [2021] EWHC 2828, a claimant who ran out from a pavement crowded with pedestrians in front of a taxi on a Saturday night, without first looking, succeeded in establishing primary liability against the driver who was travelling at 20mph in a 30mph zone. The case reminds us that the issue with speed in assessing primary liability is not whether the driver was travelling within the speed limit, but whether their speed is reasonable for the conditions. In this case, where there was a crowded pavement of pedestrians and it was found the driver should have been travelling at only 15mph, at which speed the accident might have been avoided. Additionally, the pedestrian had succeeded in crossing the southbound carriageway before being struck in the northbound carriageway. Primary liability attached. However, the court's focus then switches to determining any fault on the part of the claimant which might attract a finding of contributory negligence. Her damages were reduced by 50% on the basis that she created the dangerous situation by stepping out into the carriageway without looking, and there were no other cars travelling in either direction so she could easily have waited for the vehicle to pass before crossing.
In cases involving child pedestrians, there is often more debate as to whether and to what extent contributory negligence might apply. However, there is a growing body of caselaw establishing that fault can be attributed to even very young children and in the case of teenagers, that position is now very clear. This is demonstrated once again in Gul v McDonagh [2021] EWCA Civ 1503. The uninsured defendant was being spoken to by police about a criminal investigation before he proceeded to drive off at speed. He was travelling at 40mph in a 20mph zone. The 13 year old claimant was crossing the road when he was hit by the vehicle. The defendant drove away from the scene. The appeal court accepted contributory negligence on the part of the claimant. A 13 year old carrying out a reasonable assessment of the situation would have realised the car was travelling faster than usual and would have waited for it to pass. Even if it were reasonable to set off across the road, a reasonable 13 year old would have kept the car under observation and could have sped up to cross and avoid being hit.
BLM's interactive Vulnerable Road Users Database, which is available to access, has now been updated to include these new cases.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
