Rehman v Brady, The Estate of & Anor

A driver must select a speed appropriate to the road, traffic and surrounding hazards, even when travelling within the posted speed limit. Where parked vehicles, road works, junctions, traffic-calming measures and nearby pedestrians create obvious hazards, a materially lower speed may be required. A child who crosses when beckoned by a parent will not ordinarily be contributorily negligent where the accident would have been avoided had the driver travelled at a reasonable speed. The claimant must still establish negligence and causation on the balance of probabilities.

The claimant, aged seven at the time, was seriously injured when struck by the first defendant’s Range Rover while crossing a residential road near her home. The second defendant, the motor insurer, had avoided the policy under Road Traffic Act 1988, section 152, and participated as Article 75 insurers with liberty to exercise the first defendant’s rights.

The trial concerned liability only. The defendants disputed the vehicle’s speed, alleged that the collision was unavoidable, and pleaded contributory negligence. The central issues were whether the driver had driven negligently and whether the claimant bore any responsibility for the accident.

1. The claimant succeeded on liability. The court found that the Range Rover was travelling at 28–32 mph when it struck the claimant, notwithstanding the 20 mph speed limit.

2. The appropriate speed depended on the circumstances, not merely on the posted limit. The road was hazardous because of parked vehicles, restricted visibility, road works, the junction, traffic-calming measures, pedestrians and the likelihood of children being present. A reasonable speed approaching the junction was no more than 15 mph. Even at 20 mph, the collision would have been avoided.

3. The finding of excessive speed established breach of duty and causation. The agreed accident-reconstruction evidence showed that, at a reasonable speed, the claimant would have cleared the vehicle’s path, whether she was running, walking, or doing both.

4. The claim of contributory negligence failed. The relevant approach was to consider what could reasonably be expected of a child of the claimant’s age. She crossed after being beckoned by her mother, and the accident resulted from the driver travelling at or approaching twice the reasonable speed. There was no basis for attributing fault to a seven-year-old child in those circumstances.

5. The claimant had discharged the burden of proving negligence and causation on the balance of probabilities. The action therefore succeeded, with no finding of contributory negligence.