Civil Litigation Law Personal Injury Claim

Personal Injury Claim in a Pedestrian- Driver Accident

When a pedestrian and car accident occurs, the court may rule on who is at fault depending on the facts presented. The duty of care is a road user’s basic responsibility of not causing injuries to oneself or others. However, not every user is guaranteed to have an absolute care of safety for all users, but it means that one must take care to ensure the prevention of injuries that could be anticipated reasonably due to the actions or inactions of a road user[1]. A driver has a legal responsibility of driving in a safe manner with attention and due care at all times. From the case of Donoghue v Stevenson [1932][2], Atkin LJ made the judgement, specifying on the reasonable care of avoiding acts that can be reasonably foreseen to likely injure another person. Though the case was based on product liability, there was a lack of the duty of care, a foreseeability of damage in terms of injury due to breach and a breach of duty.

When a pedestrian is injured by a driver, the person that has been injured looks to the Statutory law and the Highway Code that govern the use of the road for a claim to be made that a driver had been in breach of his duty of care to the injured pedestrian. Additionally, pedestrians have the highest vulnerability to road accidents of all the road users. This is because a pedestrian is not able to anticipate the speed of any oncoming vehicle cannot have the speed for evasive action, is at risk of contact with a moving vehicle when crossing the road, and if struck by a vehicle, one suffers serious injuries due to no external protection.

In this case, on March 25th, 2013, Selma King (aged 32 years) was hit by a Ford Escort car as she crossed Coretta Road (the road just in front of Montgomery Primary School where she had gone to collect her 6 year old daughter). Due to the accident, Selma suffered a miscarriage and was rendered infertile. This led to depression especially when she sees a baby, all due to the accident. The first witness, Mrs A said Selma had crossed the road in front of a parked white van when the Ford Escort came from Selma’s right and hit her. Mr B said he was on the opposite side of the road when the Ford Escort passed him and it seemed to him that the driver lost control before hitting Selma. Ms C (who was with Mr B), said the driver was arguing with the passenger just before the accident. Mr Clark was found guilty of driving with faulty brakes contrary to the Road Traffic Act 1988. Neither party is admitting liability.

According to the accounts of the witnesses, Mr Clark lacked the duty of care owing to the injuries caused on Selma. The car came from nowhere and hit Selma as she crossed the road. It is required that both the pedestrian and the driver ought to follow the road rules with reasonable case being exercised. In this case, it seems that the obvious culprit for negligence is Mr Clark the driver. It was Mr Clark’s (the driver) duty of care to exercise reasonable care. Failing to do so is regarded as negligence. This can be termed as driving without due care and attention. Section 3ZA (2) of the RTA 1988 covers offences of careless driving (driving without due care and attention). In this case, Mr Clark committed an offence of careless driving by driving while distracted by the argument with his wife. Combined with a loss of control of the vehicle, the blame may not be at 100% liability for the driver. In R v Warwickshire Police Ex p. Manjit Singh Mundi [2001][3], there was no explanation for crossing a central white line, thus, evidence of careless driving.

The accounts of Mr B and Mrs C clearly show that the driver was not concentrating on the road, arguing with his passenger. This is a factor that applies to the elements of negligence. Distracted driving is one of the factors of contributing to the driver’s negligence[4]. The Highway Code is used for guidance on the conduct of a driver or pedestrian as a reasonable road user. From the Road Traffic Act 1988 Section 38(7), when a person fails to observe any provision of the Highway Code, then there is liability of that person to criminal proceedings. Mackie J, relied on Powell v Philips [1972][5]to make a judgement in Wakeling v McDonagh [2007][6]where when with the establishment of a breach of the Highway Code, there was no negligence presumed but a factor was taken into account to consider the issue.

On the other hand, Mr and Mrs Clark have said Selma caused the accident as she stepped out into the road in front of them and the accident happened when Mr Clark tried to avoid her. For an offence under section 20, there must be proof that the defendant Mr Clark, foresaw that the action might cause injury to the claimant, Selma, even if it would have been minor compared to the actual occurrence like in R v Savage; DPP v Parameter [1992][7]. This is an obvious denial of liability alleging contributory negligence, yet Mr Clark had foreseen the occurrence of the accident.

Contributory negligence occurs when the injured person may be in breach of the duty of care, thus being partly at fault for the accident as per contributory negligence Act 1945[8]. Anyone using the road has a duty of care for his or her own safety and should take reasonable precautions with awareness on the risk of injury. In the case of Davies v Swan Motor Co Ltd [1949][9], there was determination of two aspects of apportioning responsibility between the defendant and the claimant according to Lord Denning. They are; the respective blameworthiness of both parties and the respective causative potency of their actions. Lord Denning said that the appropriate test for contributory negligence in a pedestrian is when someone steps into the road, owing to the duty of care to himself for safety. In this case, there should be consideration of the behaviour of Selma and Mr Clark. Selma was crossing the road after checking that the only car on the road was a parked white van. This was the same scenario in Sang v Cornes [205][10] where the claimant attempted to cross the road and collided with a van that the defendant was driving. According to Dobbs J, the claimant had exercised reasonable care and thus, no contributory negligence. If it was a child who was allowed to go out to the road alone without mastering the Green Code, then the person in charge of that child is to blame.

Statutory requirements from the Highway Code on drivers that approach pedestrian crossings require that a driver must give way when someone moves to cross [Reg. 25, Zebra, Pelican and Puffin Pedestrian Crossings Regulations and General Directions 1997[11]. This indicates that the driver was the one at fault for not giving way and stopping when Selma was crossing the road. Therefore, it can be determined that Mr Clark was at fault for the accident due to the distracted driving and not due to the negligence of Selma. Furthermore, Mr Clark was found guilty of driving with faulty brakes contrary to the Road Traffic Act 1988. Section 41A of the Act under Regulations 15 to 18, the driver of a vehicle is required to make sure that the braking system of the vehicle is in efficient and good working condition and be properly adjusted for transport. Therefore, Mr Clark failed to confirm this, leading to a failure to stop when there was a need to avoid hitting Selma.

Furthermore, contributory negligence cannot be argued in this case since Mr Clark was speeding in a safety zone. Although legislation has no specific pieces on the status of the vehicle, it can still be usable for prosecution when the vehicle is in a poor state of repair as a Case of Careless Driving or Dangerous Driving. In this case, it has to be proved that the mechanical defect of the brakes were in a state that obviously affected the competency of the driver. The offence of dangerous driving covers driving a vehicle in a defective state that is dangerous. This can be referred to in the case of R. v. Woodward [1995][12], as per Lord Taylor CJ. A police report using CCTV videos can be requested or obtained online for evidence. If the brake is faulty, then there is a possibility of not driving carelessly or due to mechanical problems, then the driver may not be convicted in that regard[13].

However, one might lose control of a vehicle due to mechanical failure and cause an accident and injuring another person. This defect may arise suddenly and it manifests in the vehicle at that particular time of the accident. Mr Clark can use this as a defensive occurrence like in R. v. Spurge [1961][14], if the driver (Mr Clark) did not know of the defect beforehand. If the driver knows of the defect or discovered it, then he has the responsibility of exercising reasonable prudence as in the case of Burns v. Bidder [1966] [15]and Hougham v. Martin [1964][16]. A counterclaim can be made in this regard, arguing that there was loss of fertility of his wife and he may make this no admittance for liability.

According to the Road Traffic Act 1988, all drivers are required to have insurance covering third parties like pedestrians, who may be injured during an accident with the driver. Some of the drivers can have an additional insurance cover of comprehensive car insurance to cover personal injuries and vehicle damages. When Selma wants to issue proceedings for injuries caused by Mr Clark, then the solicitor, Mr Martin, will give notice to Mr Clark’s insurer under section 151 of the Road Traffic Act 1988. This section Act is designed for the prevention of the insurer from not paying out the insurance policy on the grounds that Mr Clark was in breach of the terms of the policy due to distracted driving. Under section 143 of RTA 1988, if the driver is uninsured at the time of the accident, it is an offence. The offence is triable with a minimum disqualification of one year and a maximum sentence of two years imprisonment as was the case in R v Hughes [2013][17] where it was determined that there was relevance in standard driving.

Selma can make a compensation claim for the injuries she received because Mr Clark was not paying full attention to the road as a distracted driver since he was arguing with his wife in the vehicle and lost control of it. The court can determine the general damages with estimations for the claimant on pain and suffering entitlement depending on the fault[18]. If the defendant (Mr Clark) would admit all liability, then the amount of damages will be discussed outside the court to settle the case. Therefore, they should decide on the damages to be paid for personal damage and injury with other factors of harm (mental) when the age is not known is still subject to change. Since Mr Clark injured a person travelling on foot, Selma, then a compensation claim of pedestrian injury is made through the vehicle insurance policy that he has. A part 36 offer can be used in court proceedings. It describes the offer made by one party in settling the claim to the other party as per part 36. The offer facilitates parties to settle matters without the basis of prejudice at all dispute stages. When the offer is made by a defendant and within the time period given for acceptance is accepted by the claimant then there is entitlement to claim the legal costs back until the date the offer is accepted by the claimant[19]. A solicitor will ask the claimant’s solicitors for the costs and inform the client on making a Part 36 offer or accepting.

In the case of Claire Hale v Daniel Burridge [2009], [20]there was physical and mental damage suffering a miscarriage. The damages for Ms Hale were £9250. During the assessment for damages of a miscarriage, the court considers factors of the pregnancy advancement and whether the claimant would have children in the future. There are also considerations of the psychological reactions to loss and the views of the claimant on the pregnancy. Courts and solicitors use the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases (12th edition) to calculate the estimated value for injuries where in this case, it would range from £14,000 to £40, 300 for moderate to severe injuries. In personal injury cases, significant problems associated with factors of harm and general damages would occur but the prognosis would bring an optimistic turn (p. 13[21]). With the injury to the reproductive system of a female, then compensation ranges from £13,200 to £27,000 (p.29[22]). In this case, there is infertility without a medical complication and the injured person already has a child, therefore, psychological damage gives the claimant the upper hand.

Conclusion

A driver has a legal responsibility of driving in a safe manner with attention and due care at all times. The duty of care is a road user’s basic responsibility of not causing injuries to oneself or others. When a pedestrian is injured by a driver, the person that has been injured looks to the Statutory law and the Highway Code that govern the use of the road for a claim to be made that a driver had been in breach of his duty of care to the injured pedestrian.

As a recovering compensation, the pedestrian accident claim by Selma can be made as a personal injury claim where she has to prove that the driver was fully responsible for the injuries she suffered. Her medical records would prove the extent of her injuries and she may have to undergo a thorough medical examination to make an establishment of the severity. The amount of compensation that she can claim would depend on the extent of her injuries. The available compensation for such injuries should be a reflection of the pain, suffering and loss of amenity (PSLA) helping Selma in her treatment and rehabilitation at least.

References

Burns v. Bidder [1966] 3 All E.R. 29

Claire Hale v Daniel Burridge [2009],

Cunningham-Hill, Susan, and Karen Elder. Civil Litigation Handbook 2014-15. Oxford University Press, 2014

Davies v Swan Motor Co Ltd [1949] CA, 1 All ER 620

Donoghue v Stevenson [1932] AC 562

Hougham v. Martin [1964] Crim.L.R. 414; 108 S.J. 138

Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases (12th edition)

Powell v Philips [1972] 3 All ER 864

R v Hughes [2013] UKSC 56

  1. v. Spurge [1961] 2 Q.B. 205

R v Savage; DPP v Parameter [1992] 1 AC 669

R v Warwickshire Police Ex p. Manjit Singh Mundi [2001]

  1. v. Woodward [1995] 2 Cr. App. R. 388 at 395

Sang v Cornes [205] EWHC 203 (QB),

SI 1997/2400)]

The Road Traffic Act 1988. Retrieved from http://www.legislation.gov.uk/ukpga/1988

Wakeling v McDonagh [2007] EWHC 1201 (QB)

[1] Cunningham-Hill, Susan, and Karen Elder. Civil Litigation Handbook 2014-15. Oxford University Press, 2014

[2] Donoghue v Stevenson [1932] AC 562

[3] R v Warwickshire Police Ex p. Manjit Singh Mundi [2001]

[4] Cunningham-Hill, Susan, and Karen Elder. Civil Litigation Handbook 2014-15. Oxford University Press, 2014

[5] Powell v Philips [1972] 3 All ER 864

[6] Wakeling v McDonagh [2007] EWHC 1201 (QB)

[7] R v Savage; DPP v Parameter [1992] 1 AC 669

[8] Cunningham-Hill, Susan, and Karen Elder. Civil Litigation Handbook 2014-15. Oxford University Press, 2014

[9] Davies v Swan Motor Co Ltd [1949] CA, 1 All ER 620

[10] Sang v Cornes [205] EWHC 203 (QB),

[11] SI 1997/2400)]

[12] R. v. Woodward [1995] 2 Cr. App. R. 388 at 395

[13] Cunningham-Hill, Susan, and Karen Elder. Civil Litigation Handbook 2014-15. Oxford University Press, 2014

[14] R. v. Spurge [1961] 2 Q.B. 205

[15] Burns v. Bidder [1966] 3 All E.R. 29

[16] Hougham v. Martin [1964] Crim.L.R. 414; 108 S.J. 138

[17] R v Hughes [2013] UKSC 56

[18] Cunningham-Hill, Susan, and Karen Elder. Civil Litigation Handbook 2014-15. Oxford University Press, 2014

[19] Cunningham-Hill, Susan, and Karen Elder. Civil Litigation Handbook 2014-15. Oxford University Press, 2014

[20] Claire Hale v Daniel Burridge [2009],

[21] Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases (12th edition)

[22] Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases (12th edition)

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