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Speed of Driver Decisive on Liability For Road Traffic Accident

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At the age of 7 Miss Anisa Rehman had been walking on a residential street near to her home accompanied by her mother, aunt and sister. They came towards workmen repairing a drain in the road using welding or cutting tools which produced sparks. Their van and trailer were parked at the side of the road. The party therefore prepared to cross to the other side of the road and continued passed the road works. The Claimant had lagged behind the adults and was the last of the party to cross.

hlw Keeble Hawson LLP LogoThe road in question was a single carriageway, wide enough for two vehicles to pass, but commonly found to have residents’ vehicles parked on both sides. The speed limit was 20mph.

The Defendant, driving a Range Rover, proceeding down the road, failed to see the Claimant emerge from behind the workmen’s van and collided with her as he drew level with the van. The Claimant was thrown through the air and landed in the road sustaining serious personal injury including head, thoracic, abdominal and pelvic injuries.

The Defendant’s Insurer argued that the Claimant was masked by the work van and that as she ran out from behind the van, the collision was unavoidable.

At Trial, both parties were given permission to rely on expert accident reconstruction evidence. Only the Claimant did so, the report stating that the Range Rover must have been travelling at between 28mph and 32mph. The report also concluded that had the Defendant been driving at a lower speed of 20mph the collision would have been avoided, the Claimant would have cleared the road before the Range Rover reached her.

The Defendant brought witness evidence as to the speed he was travelling to the effect that the Range Rover had stopped much closer to the point of impact and therefore by using the same method of calculation as the expert witness, would have been travelling at approximately 16mph. The Trial Judge did not accept the lay witness evidence of the Defendant, on the basis that at the time of Trial, his memory of the accident details had faded and, moreover, was inconsistent with the coherent picture of the accident provided in the expert report.

On the question of contributory negligence, the Judge accepted the Claimant’s argument that there should be no finding given that the Defendant was negligently travelling in excess of the speed limit and had he not been, the accident would have been avoided altogether. The Judge applied the correct legal approach when considering contributory negligence, namely what could have been reasonably expected of an ordinary child of the Claimant’s age.

In road traffic cases involving child pedestrians it is usual to see a high standard of care expected of motorists. However, in this case, there was no discussion of whether the Defendant knew, or ought to have known, that there were children in the vicinity and that he should therefore have slowed down accordingly. The case did highlight the weight to be given to lay witness evidence when such a long time elapses between accidents in Trial, as is often inevitable with the claims of minors. Contemporaneous evidence being more persuasive, the Police Report was particularly relied upon in this matter.

Overall, the case is supportive of pedestrians, either child or adult, as it illustrates that allegations of contributory negligence will not be successful where it can be shown that the accident would not have happened at all but for the Defendant’s negligence.

(Rehman v Estate of Brady (deceased) and another) 2012 (EWCH 78 QB)

David Eade and Sarah Finnemore

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