Probert v Moore

A driver on a narrow, unlit country road must adjust speed to the road, visibility and the foreseeable presence of pedestrians and other vulnerable road users. Breach of the Highway Code is evidence relevant to negligence, but creates no presumption of negligence.

Contributory negligence by a child is assessed objectively by reference to the conduct expected of an ordinary child of the same age. A child is not judged by the standard of a prudent adult. A decision to walk along a road, without more, may be ill-informed but is not necessarily culpable.

The claimant, a 13-year-old child, was seriously injured when struck from behind by the defendant’s car while walking along a narrow, unlit country road in December 2009. She claimed damages for personal injury.

The defendant alleged that the claimant had contributed to the accident by walking on the road in dark clothing while using earphones and failing to take further precautions. The issues were whether the defendant had driven negligently and whether the claimant was at fault under section 1(1) of the Law Reform (Contributory Negligence) Act 1945.

1. The defendant was negligent. A reasonably prudent driver would not have exceeded about 40 or 45 mph on this road. The defendant was travelling in excess of 50 mph, failed to reduce speed when meeting oncoming traffic, and concentrated on the approaching vehicles rather than ensuring that the road ahead was clear.
2. Breach of the Highway Code creates no presumption of negligence. It is evidence which may be relied on in establishing negligence, following Powell v Phillips [1972] 3 All ER 864.
3. Under section 1(1) of the Law Reform (Contributory Negligence) Act 1945, a reduction requires fault by the claimant which contributed to the damage. For a child, the applicable standard is that of an ordinary child of the same age, not an adult or a paragon of prudence, applying Gough v Thorne [1966] 1 WLR 1387.
4. The claimant was walking on the safer side of the road. Approaching traffic would have masked the sound of the defendant’s car, whether or not she was using earphones. It would have required exceptional prudence to expect a 13-year-old to wait for collection, obtain reflective clothing or a torch, or take the same precautions as an adult. Her decision to walk home was ill-informed but not culpable.
5. Judgment was entered for the claimant, with damages to be assessed. Permission to appeal against the finding of no contributory negligence was refused.

First-instance judgment. Judgment was entered for the claimant for damages to be assessed. Permission to appeal was refused.