Should pedestrians be responsible? Churchill ins. appeal

[heresmo]

I'm trying to figure out what Churchill Ins. hope to gain from what seems to be an almost frivolous attempt to ignore the causal facts in this case, being, apparently, that a vehicle travelling too quickly swerved to avoid an oncoming vehicle. It seems unlikely to me that they will win the appeal in this case, which will presumably be determined on the facts of the case, so are they hoping that a glimmer of judicial acknowledgement will allow insurance companies to use it as a precedent to mitigate future claims?

It's hard to separate this case from the principles that Churchill appear to be trying to set, or get recognised. For example, in this case, it would seem that even if Bethany were lit up like a Christmas tree, the driver would instinctively have swerved to avoid a head-on collision so could well still have clipped her, visible or not, in the split second he seems to have left himself.

A case from ages ago was where a motorist tried to avoid a bill to pay for a damaged central island light. He contended that he wouldn't have run into it had it been lit so it was the council's fault because it was unlit. Needless to say, his defence was thrown out. The words were something like "don't be silly, it could have been a child". Luckily, it wasn't a child. In this case it is and one can only feel sad that it happened.

Headphones - debatable. They don't blot out all sound, and given Bethany was seemingly walking expecting a lift, she'd probably have been on the lookout for her mum's car anyway and would likely have been aware of the headlights of the two cars (supposition and without knowing the road layout), but in principle alone, it's hard to see why any person should have to jump out of the way of a speeding car and should have every right in my opinion to assume that drivers knew what they were doing.

Age (13) is a red herring, I reckon.

I do wish people would be uncool and wear something white, be it trainers, hat/scarf whatever. I carry a white plastic shopping bag even in the high street after the rush hour when it's dark as some cars/motorbikes go at least 40mph, tsk.

Anyway, Hi ScoobyChris and David 8. 'Tis I. Hope you and yours are all well

[heresmo]

@ Clunkclick: On cycling, I followed my mid-teens son as a kerb crawler whilst he was on his new bike. I was horrified and immediately booked him a one-to-one training session about £100/hr(!) at the time, covering traffic, roundabouts, right turns etc. He was so put off that he refused to ride it, in London that is, which many will tell you is not for the faint hearted, ho hum. I think some schools do run such courses for free for early teens, although some kids are "street" enough just to "geddit" and annoyingly weave in and out a bit like motorbikes do. Depends on the location as to how aware motorist are of cyclists, or bother to take notice of them.

I've often thought that you need to be a cyclist to know how to drive a car, and know how to drive a car to be able to ride a bike.

[apd007]

Tough case, and I do feel sorry for the girl. However, I can't help but feel the driver is being villified for being a maniac on the road for driving too fast. The information I heard on the case was the driver had pulled over to the left in order to avoid an oncomming car, and clipped the girl. He then parked up and spent a considerable amount of time looking for her before finding her in a ditch, I can't help but think that "There but for the grace of God etc.".

He was driving at 50 mph down a 60 mph road, the girl wasn't wearing any form of high vis clothing, was wearing headphones, and had her back to him - when I was growing up I was ALWAYS told if I have to walk on a country road walk facing the traffic so you can see what's coming and get out of the way, or move over to the side well out of the way and wait for the traffic to go past. Had she been on a school trip, for example, and been clipped in similar circumstances I reckon there would have been an outcry with hysteria splitting blame between the teacher(s) for NOT supplying hi vis clothing and the driver.

There has to be a basis of common sense and reasonable endevour in any situation and my ultimate view is, whilst tragic, the girl displayed a lack of common sense and resonable endevour in making sure she could be seen and therefore I feel must accept some responsibility for what happened. Had she being wearing a hi vis jacket then it is reasonable to assume the driver of the car would have seen her, would have slowed down or not moved so far over and wouldn't have hit her, the hi vis jacket alone would have probably been enough to overcome the headphones and which side of the road she was walking on.

Truthfully, I expect the judge to go down the route that is being trodden more and more, the motorist is evil, therefore it is wholly the motorists fault and the insurance company will be forced to pay out.

Edited 8 February, 2013 by apd007

[KenONeill]

Let's examine the known facts:-

1. The pedestrian was not wearing high vis, was wearing headphones, and was walking with her back to the traffic. This is all "contributary negligance.
   
2. The driver who hit her was travelling within the ruling speed limit.
   
3. He took action to avoid an oncoming car. We have no information about this car, and little to none about where the impact was relative to a corner that we know was near the impact site.
   

Ok, now lets speculate about possible mitigation:-

1. The oncoming driver appeared round a corner on full beam.
   
2. TOD was using more than a fair share of the road.
   

Does anyone still think that blame necessarily vests 100% in a single party out of the 3 principals?

[Aspman]

This is one of those legal things where the 'R' word comes into it.

It is REASONABLE to expect a pedestrian walking on an unlit country road at night to take some sort of measure to make themselves visible. I'd probably have to say yes.

The same as it is reasonable to expect cyclists to have lights at night etc.

In this case it's trickier because the driver has already been found guilty. Harder for the ins company to withhold against that judgement.

but nothing is set in stone when dealing with the 'r' word and it all comes down to legal precedents.

Edited 8 February, 2013 by Aspman

[WRCSixtyThree]

Highway

He was driving at 50 mph down a 60 mph road, the girl wasn't wearing any form of high vis clothing, was wearing headphones, and had her back to him - when I was growing up I was ALWAYS told if I have to walk on a country road walk facing the traffic so you can see what's coming and get out of the way, or move over to the side well out of the way and wait for the traffic to go past.

Quite right. Highway code 'Rules for Pedestrians'

Part 1: General guidance (1 to 6)

2

If there is no pavement, keep to the right-hand side of the road so that you can see oncoming traffic. You should take extra care and

• be prepared to walk in single file, especially on narrow roads or in poor light
  
• keep close to the side of the road.
  

It may be safer to cross the road well before a sharp right-hand bend so that oncoming traffic has a better chance of seeing you. Cross back after the bend.

3

Help other road users to see you. Wear or carry something light-coloured, bright or fluorescent in poor daylight conditions. When it is dark, use reflective materials (e.g. armbands, sashes, waistcoats, jackets, footwear), which can be seen by drivers using headlights up to three times as far away as non-reflective materials.

At 13, if she was old enough to go to places like the stables by herself, and ride horses (in itself a risky business) by herself, she was old enough to follow a few simple bits of guidance.

Yes, it's tragic, but ultimately she has to bear some of the responsibility for the accident, just as the driver does.

[keystonedriving]

A pedestrian has no right of way over and above that of a car.

For the past 898 years pedestrians have had the right to use the highway, along with horses, animals capable of being herded and the animals used to herd them (i.e. dogs).

It was restated in the 1848 (I may be a year or two out) Road Traffic Act and the right of Cyclists were given the right to use the highway in about 1874.

Nobody else has any right to use the highway, although you can be issued with a licence to do so. This means that your use is always subservient to those who have the right to be there.

The highway is everything between the boundaries, so if you wish to walk down the middle of a four lane road you have an absolute right to do so and it is the duty of motorists to avoid you. The police can advise you not to do it, but they cannot prosecute you. They may feel inclined to get you sectioned under mental health legislation but that is another matter.

None of the above, by the way, applies on a Motorway because they are not highways. They are special roads subject to a totally different set of regulation regarding their use.

The upshot of it is that if you are driving or riding a motor vehicle and you hit a pedestrian it is automatically your fault because they have the right to be there and you don't.

It may not feel very logical or reasonable but that's the way it is.

Don't expect Parliament to be in too much of a hurry to do anything about it, either. The legislation which established these rights in the first place also established Parliament. You don't mess with the Magna Carta!

[heresmo]

As reported (such as reports are), the ins. appeal is centred on the girl, Bethany, with the third party, the oncoming driver, seemingly not figuring. If TOD did figure in the incident, I guess that must have been dealt with during the original trial and the ins. co. thought it infeasible (meritless) to include him/her in their appeal. The telling thing perhaps is that the ins. co. were given leave to appeal, so I wonder how much we don't know...

It's hard not to equate this with personal experience of near misses of "invisble" people. In truth, if you live where "cool" people insist on being invisble, you do learn to look out for them. I'd imagine that on country roads the same is true, even if one might be looking out for animals, but basically looking out for anything.

If it does become a precedent that people of all ages should be wearing or have worn hi-vis when it's dark, at least in insurance settlement claims terms, then gawd help peeps who'll be deemed fair game if they're not hi-vis.

[Moist Von Lipwig]

If it makes people more aware of being safe and taking responsibility for themselves rather than continually blaming someone else then at least something positive may have come out of this tragic event. However if it just becomes a stick for the insurers to beat victims with then it is wrong.

[M12MKD]

Tragic story, just highlights one thing the lack of common sense in today's society.

[AnotherGareth]

If TOD did figure in the incident, I guess that must have been dealt with during the original trial

I wondered about whether there was an oncoming vehicle so I did a little digging and found a report about the original court case and where the accident probably took place. The road is wide enough for cars in both directions to pass without inconveniencing each other. The time of day and time of year mean it would have been just after dusk.

The telling thing perhaps is that the ins. co. were given leave to appeal, so I wonder how much we don't know.

I imagine the reason might be to contest the scale of the award on the basis that Bethany was negligant as to her own safety. If so, the question for the court to consider is whether 13 year olds who are familiar with country roads know enough to take a measure of responsibility for their own safety when walking on unlit country roads at night.

Clearly the driver has the largest proportion of the responsibility -- if I were driving that road at that time I'd have been on main beam and positioning wide, quite possibly close to the speed limit, ready to slow and move in at the first sign of lights of an oncoming vehicle. I'm not sure how I could miss a walker even if on the wrong side of the road and in dark clothes, although I might spot a walker very late if I was using dipped beam and positioned close to the left. It could be worse if I was distracted, looked in a mirror or fiddled with the radio at just the wrong time

Edited 10 February, 2013 by AnotherGareth

[seboni121]

I drive on this road ver often usually at night, many a time you would get friggin holiday makers walking on this road without any lighs or fluorescent jacket, usually just a black or dark clothing and that's it ! , this includes the kids n all ! Bloody idiots its a very twisty road with dog leg corners and the amounts of times I've stopped the car and given them a bloody rollicking I've forgotten, same thing year after year!, I've even contacted the local council and tourist board,even the hoteliers why can't they bring something too let the locals know that the plonkers have arrived FFS

[fordfan]

They should make the Highway Code part of the school curriculum, it's not just for motorised vehicle users, there are applicable parts of it for cyclists and pedestrians.

It's a set of unfortunate, though avoidable circumstances that have claimed a life and possibly affected the life of the driver involved.

[Moist Von Lipwig]

I imagine the reason might be to contest the scale of the award on the basis that Bethany was negligant as to her own safety. If so, the question for the court to consider is whether 13 year olds who are familiar with country roads know enough to take a measure of responsibility for their own safety when walking on unlit country roads at night.

That's my take on it. As to her age, I personally feel that at 13 she cannot be held fully accountable for her own safety. The parents and possibly the stables have to take some responsibility for letting a child walk home at night on the road with no light or flourescent markings.

[Dudeoli]

I've often thought that you need to be a cyclist to know how to drive a car, and know how to drive a car to be able to ride a bike.

Although I don't ride my bike much, I realise it's not easy and just how vunerable cyclists are. For this reason I always give them space, but feel many don't help themselves.

When driving in London once I got in a wrong lane by mistake, checked my mirror and blindspot and started to move over into the correct lane. Luckily I didn't move over completely without checking my mirror again as the silhouette of some moronic cyclist suddenly appeared. If there hadn't been a car behind me with headlights on I would have taken him clean off!

I know thats a lights issue rather than hi-vis, but some people don't understand that they need to help themselves; See and be seen!

[heresmo]

Reading AnotherGareth's court case link (ta for that), it would seem that there wasn't a particular oncoming driver, but that the driver was ajudged to be concentrating on avoiding oncoming traffic generally, so was not aware (or was less aware) of his immediate foreground.

Rate of travel @ 50mph = 73ft per second. Even 45mph is 66ft per second. If focussed on the road ahead (and apparently the driver was in a hurry so presumably a fairly constant focus), I reckon you'd have to have blinking good eyesight to swap to short-distance focus at side vision and react in time for an obstacle (even if lit up) and still be able to brake (or avoid) in time. Coming to a complete stop at 50 mph is some 175 ft apparently.

Case versus principle again. In principle, I'd have everyone lit up like Christmas trees. I'd also have every driver paying attention and driving safely for the road conditions.

[WFM]

I think, as an experienced accident investigator, that there are a number of points to consider here;

1. The girl was not following elements of the Highway code and that did put her in harms way, she should have been walking on the other side facing the traffic but,

2. I seriously doubt if the action of wearing Hi Vis had anything to do with the fact that the speeding car swerved to avoid an oncoming vehicle and hit her, he would have done the same if she was lit up in neon.

3. In terms of root cause, you are looking at speed, driving above the limits of the vehicle/road and possibly careless driving, contributory on the girls part would be walking on the wrong side of the road, as an accident investigator the Hi Vis gear wouldn't get a mention unless you could prove it contributed to the accident or outcome.

4. In my experience Churchill, and a number of other insurance companies, are now in the business of employing people to find loopholes in accident accounts in order to have the amount of the claim reduced.

5. The judgement of contributory negligence on her part is designed to reduce the claim nothing more, as for road safety, I agree with other comments on here, the Highway Code should be part of the school curriculum, maybe then she might have known to be on the other side of the road wearing Hi Vis gear.

My sincere condolences to her family and friends.

[WFM]

Can I also respectfully add that the speed limit is exactly that, a limit not a target. If you are travelling below the limit you can still be going too fast for the road and/or conditions.

[AnotherGareth]

2. I seriously doubt if the action of wearing Hi Vis had anything to do with the fact that the speeding car swerved to avoid an oncoming vehicle and hit her, he would have done the same if she was lit up in neon.

According to the court case report I found there was no oncoming vehicle. Also, one of the facts found by the court was that the driver had not been breaking the speed limit, so not 'speeding' in the conventionally accepted meaning of the word.

My sincere condolences to her family and friends.

Perhaps you haven't realised the girl lives. Maybe condolences to her are also in order?

[James_]

Did see a thing on one of the traffic police shows about a woman who hit a cyclist at night on dual carriageway. He had no lights, and no reflective stuff and had probably been drinking, unfortunately he died as a result but she was absolved of any responsibility by the police, or at least not charged as I remember.

I remember seeing a program where a cyclist was hit by a driver in the dark. The cyclist was wearing dark clothing and had no lights on or any reflectors. the Police's view was that as a driver you should be able to react to what they would reasonably be expect to come across for the road conditions. The driver had dipped beam on because of the traffic conditions and it was judged that this was not something the driver could expect to come across in that case and no charges were bought against the driver.

Anyone else see the road wars episode where a woman smashed into a cyclist killing him, the police brought no charges against her because the cyclist had no lights, reflective clothing and was dressed in black.

From 40:30.

http://www.youtube.com/watch?v=TN6t9ykJT5A

[DaKKs_152]

Under current EU legislation, I'm guessing you guys have the same, you don't have to wear a high visibility jacket or anything similar. So no, its not her fault. It should however be mandatory to do so under certain circumstances.

Also, I'm all for forcing more responsibility on pedestrians, because this is getting ridiculous. They run or walk out on crosswalks without any thought of life or limb. Just because you have to stop doesn't mean you can stop. Especially in snow and ice. They run straight out onto the road with the common sense of a headless chicken and expect us drivers to avoid them. And when they cross at a red light and get run over, the court blames the driver. BoIIocks!

[XLBaconDoubleCheese]

From 40:30.

http://www.youtube.com/watch?v=TN6t9ykJT5A

Thats the one!

[Lady Elanore]

Gordon Bennet!!! It's Mo!!!! Where have you been for the last few years? You well?

Sorry OT, but it has been years

[RainbowFire]

I seem to recall that, when I were a lad, there were public information "adverts" on TV. They carried such messages as "Be Safe. Be Seen" and "Always Wear Something Bright At Night." Seems we've abandonded these messages.

The police wear hi-viz gear so they can be seen whilst carrying out their duties at night.

so do firemen.

Oh and so do paramedics.

As do lollipop ladies too.

If it wasn't a good idea, they certainly wouldn't do it.

Wearing something that allows you to be seen at night may not be cool, hip, trendy, or something you *have* to do by law, but it's better than being dead or spending the remainder of your life in need of special care. Not a hard equation really.