Whenever a road accident occurs, the court can determine who is at fault depending on the presented facts. The duty of care is a road user’s basic responsibility. Drivers and pedestrians alike should ensure that they follow the basic road rules so as not to cause injuries to themselves and others. Nonetheless, sometimes road users may fail to follow the necessary road safety and care. This therefore means that very individual must take personal care to ensure their own safety so as to avoid exposing themselves to injuries or even death. From the case of Donoghue v Stevenson , Atkin gave the verdict, specifying on the reasonable care of steering clear from acts that can obviously cause harm to another person. In particular, this case was based on product liability, since there was lack of the duty of care. The driver should have been more careful in terms seeing the damage likely to be caused by their negligence. In other words, it meant the drive was simply neglectful (Burns v. Bidder, 1966).
Analysis of Case at Hand
Whenever a pedestrian is injured by a driver, the court refers to the Statutory law and the Highway Code that govern road usage so that a claim can be made that a driver indeed breached their duty of care with regards to the injured pedestrian. This notwithstanding, pedestrians have the highest vulnerability regarding road accidents given that in most cases they have short reaction time. This is due to the fact that a pedestrian is not able to determine the speed of an advancing vehicle. As a result, they have a high likelihood the victim may suffer serious injuries especially due to the fact that they have no external protection (Cunningham-Hill & Elder, 2014).
With regards to the case in point, on March 25th, 2013, Selma King, aged 32, 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 as she had longed to see her baby. Her depression is therefore solely to blame on the accident. The first witness, Mrs A testified that Selma had crossed the road in front of a parked white van when the Ford Escort zoomed towards 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 (Cunningham-Hill & Elder, 2014).
According to the accounts of the witnesses, Mr Clark lacked the Duty of Care owing to the injuries caused to Selma. The impact was sudden. The car hit Selma as she crossed the road. According to Duty of Care both the pedestrian and the driver ought to have followed the road rules with reasonable care. 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 deemed as negligence. In law, this is 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). Consequently, Mr Clark committed an offence of careless driving by driving while distracted by arguing with his wife. Add this to the loss of control of the vehicle the blame does not warrant 100% liability for the driver. In R v Warwickshire Police Ex p. Manjit Singh Mundi , there was no explanation for crossing a central white line. As such, the case pointed towards careless driving (Cunningham-Hill & Elder, 2014).
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 that contribute to the driver’s negligence. The Highway Code is used for guidance with regards to the conduct of a driver or pedestrian as a reasonable road user. The Road Traffic Act 1988 Section 38(7) stipulates that when a person fails to observe any provision of the Highway Code, that person is liable to criminal proceedings. Mackie J relied on Powell v Philips  to make a judgement in Wakeling v McDonagh . He argued that with regards to 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 (Cunningham-Hill & Elder, 2014).
Conversely, Mr and Mrs Clark have testified that Selma caused the accident as she stepped out into the road in front of them and the accident occurred when Mr Clark tried to avoid hitting her. Under section 20, there must be proof that the defendant-Mr Clark-foresaw that his action might cause injury to the claimant, Selma. Even if it would have been a minor incident or accident with regards to the actual occurrence, such as was the case in R v Savage; DPP v Parameter , this case point towards an obvious denial of liability. His actions amount to contributory negligence as Mr Clark had foreseen the occurrence of the accident (Cunningham-Hill & Elder, 2014).
Contributory negligence occurs when the injured person fails to take necessary care while on road. Thus, they are partly at fault for the accident as per contributory negligence Act 1945. Any road user has a duty of care for his or her safety and should thus take reasonable precautions, oblivious to risk of injury. In the case of Davies v Swan Motor Co Ltd , two aspects had to be considered in apportioning responsibility between the defendant and the claimant according to Lord Denning. The factors are blameworthiness of both parties and the respective causative potency of their actions (Cunningham-Hill & Elder, 2014). Lord Denning observed that the appropriate test for contributory negligence ought to be testing whether patient practiced utmost care of safety. In case in question, behaviours of the claimant and the defendant ought to be considered. Selma was crossing the road assuming that the only car on the road was a parked white van. The same was the case in Sang v Cornes  when the claimant attempted to cross the road and collided with a van being driven by the defendant. According to Dobbs J, the claimant exercised reasonable care, thus resulting in no contributory negligence. Assuming a child had crossed the road without observing the Green Code the person in charge of that child is to blame (Cunningham-Hill & Elder, 2014).
The Highway Code requires that drivers give way to pedestrians. This is further supported by Pelican and Puffin Pedestrian Crossings Regulations and General Directions 1997. Going by this stipulation, the driver was at fault for not giving way and stopping when Selma was crossing the road. As such, it can be determined that Mr Clark was at fault for the accident due to distracted driving and not due to negligence of Selma. Furthermore, Mr Clark is guilty of driving with faulty brakes contrary to the Road Traffic Act 1988. Section 41A of the Act under Regulations 15 to 18 further states that a driver should ensure that the braking system of the vehicle is efficient and in good working condition. From the accounts investigated, Mr Clark failed to conform to this stipulation; he failed to stop when there was a need to avoid hitting Selma (Cunningham-Hill & Elder, 2014).
Moreover, 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. It has to be proved that the mechanical defects of the brakes might have resulted in the competency of the driver. The offence of dangerous driving includes driving a vehicle in a defective. With reference to R. v. Woodward , as per Lord Taylor CJ, a police report using CCTV videos can be requested or obtained online for evidence. If the brake is faulty, there is a possibility of not driving carelessly or due to mechanical problems. Consequently, the driver may be assumed innocent (Cunningham-Hill & Elder, 2014).
However, if a driver loses control of a vehicle due to mechanical failure and causes an accident or injury to another person, it may be presumed that such defects arise suddenly and manifest in the vehicle at that particular time of the accident. Mr Clark can use this as a defensive occurrence like in R. v. Spurge . However, this would only occur in the event that the driver (Mr Clark) did not know of the defect beforehand. If the driver knew of the defect, then he has the responsibility of exercising reasonable prudence as in the case of Burns v. Bidder  and Hougham v. Martin . A counterclaim can be made in this regard, arguing that there was loss of fertility of his wife and he may argue relying on Admittance for Liability (Cunningham-Hill & Elder, 2014).
According to the Road Traffic Act 1988, all drivers are required to have insurance cover for third parties such as pedestrians who may be injured during an accident. Some of the drivers can have an additional insurance cover for comprehensive car insurance to cover personal injuries and vehicle damages. In case Selma wants to issue proceedings for injuries caused by Mr Clark, then the solicitor, Mr Martin, will have to give notice to Mr Clark’s insurer under section 151 of the Road Traffic Act 1988. This Act is designed to prevent the insurer from not paying out the insurance policy on the grounds that Mr Clark breached 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 they are liable to offense (Cunningham-Hill & Elder, 2014).
Consequently, Selma can make a compensation claim for the injuries she received especially due to the fact Mr Clark failed to pay attention as a distracted driver as he was arguing with his wife in the vehicle and lost control his car. The court can determine the general damages with estimations for the claimant on pain and suffering entitlement depending on the fault. If the defendant (Mr Clark) admits all liability, then the amount of damages will be discussed outside the court to settle the case (Cunningham-Hill & Elder, 2014). With this regard, they should decide on the payable damages. Such damages may include, but not limited to, personal damage and injury with other factors such as mental harm. Since Mr Clark injured a pedestrian, Selma, a compensation claim of pedestrian injury is made through the vehicle insurance policy that covers him. Part 36 of the law 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 (Cunningham-Hill & Elder, 2014). When the defendant makes the offer within the time period given and is accepted by the claimant then there is entitlement to claim the legal costs before the claimant accepts the offer. A solicitor will inquire from the claimant’s solicitors for the costs and inform the client about making a Part 36 offer or accepting (Cunningham-Hill & Elder, 2014).
In the case of Claire Hale v Daniel Burridge , there was physical and mental damage due to miscarriage. Ms Hale was compensated £9250. During the assessment for damages due to miscarriage, the court considers factors such as stage of pregnancy and whether the claimant can have children in future. Also, psychological reactions to loss and the claimant’s views regarding the pregnancy are considered. Courts and solicitors use the Judicial College Guidelines to assess General Damages in Personal Injury Cases (12th edition) to calculate the estimated value for injuries (Cunningham-Hill & Elder, 2014). In this case, the costs would range from £14,000 to £40, 300 depending on the severity of the damage. In personal injury cases, significant problems associated with factors of harm and general damages would occur but the prognosis would bring an optimistic turn. With regards to the injury of a female’s reproductive system, compensation ranges from £13,200 to £27,000. In this case, there is infertility albeit with no medical serious medical implications as the victim already has a child. As such, the victim can rely on psychological damage.
A driver has a legal responsibility of practicing utmost caution while on the road. They should adhere to road usage and safety rules at all times. The duty of care is a road user’s basic responsibility so that they do not cause injuries to themselves or pre-empt accidents. When a pedestrian is injured by a driver, the victim relies on the Statutory Law and the Highway Code that govern road usage so as to convince the courts that the driver indeed breached his duty of care and caused them injury. As regards compensation, the Pedestrian Accident Claim, Selma can make a personal injury claim. However, she will have 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 establish the severity of the injury. The amount of compensation that she can claim would depend on the extent of her injuries. The compensation for such injuries must match the pain, suffering and loss of amenity (PSLA).
Burns v. Bidder  3 All E.R. 29
Claire Hale v Daniel Burridge 
Cunningham-Hill, S., & Elder, K. (2014). Civil Litigation Handbook 2014-15. Oxford University
Davies v Swan Motor Co Ltd  CA, 1 All ER 620
Donoghue v Stevenson  AC 562
Hougham v. Martin  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  3 All ER 864
R v Hughes  UKSC 56
R v Savage; DPP v Parameter  1 AC 669
R v Warwickshire Police Ex p. Manjit Singh Mundi 
- v. Spurge  2 Q.B. 205
- v. Woodward  2 Cr. App. R. 388 at 395
Sang v Cornes  EWHC 203 (QB),
The Road Traffic Act 1988. Retrieved from http://www.legislation.gov.uk/ukpga/1988
Wakeling v McDonagh  EWHC 1201 (QB)