Maina Kumari Rai v Advantage Insurance Company Limited (t/a Hastings Insurance)

A claimant in a road-traffic negligence claim must prove breach and causation on the balance of probabilities. The standard is that of the reasonably careful and competent driver, requiring reasonable care rather than perfection and avoiding hindsight. A driver turning across a carriageway must maintain proper observation, but liability depends on what could reasonably have been perceived in the actual lighting, visibility and attentional circumstances. Circumstantial and expert evidence may assist, but findings must remain grounded in proved facts and avoid unwarranted precision. Accident-reconstruction modelling cannot replace the court’s evaluation of the primary evidence. Where the evidence does not establish that a driver should have perceived a pedestrian in time to avoid the collision, the negligence claim fails.

The claimant was struck by a car driven by Thomas Bolton while crossing a slip road. Because she lacked capacity to conduct proceedings, her sister acted as litigation friend and gave eyewitness evidence. The defendant was the driver’s insurer.

Liability and contributory negligence were directed to be tried as preliminary issues. The central questions were whether the driver negligently failed to observe or avoid the claimant, whether any breach caused the collision, and, if liability were established, whether the claimant’s damages should be reduced for contributory negligence.

1. Claim dismissed. The claimant failed to prove breach of duty or causation on the balance of probabilities. The court therefore made no reduction for contributory negligence.
2. The applicable standard was that of the reasonably careful and competent driver. It required reasonable care, not ideal care, and the driver’s conduct was not to be assessed with hindsight. A driver turning right across a live carriageway had a heightened duty to observe the area into which the vehicle was being steered.
3. The Highway Code provisions concerning pedestrians crossing a road into which a driver was turning were relevant under section 38(7) of the Road Traffic Act 1988, but breach of the Code did not itself establish liability.
4. The court accepted that the claimant and her sister wore dark clothing, approached from an unlit background, and were partly obscured by the vehicle’s A-pillar. The driver’s attention was reasonably directed principally towards oncoming traffic when initiating the turn. In those circumstances, the claimant had not shown that a reasonably careful driver should have perceived her before she entered the running lane.
5. The evidence did not establish the claimant’s precise position, walking speed or point of impact. The court could draw reasonable inferences from circumstantial evidence, but could not speculate or make findings of precision unsupported by the evidence. Expert reconstruction assisted the factual assessment but could not determine the ultimate issue of negligence or operate as a rigid mathematical framework.
6. Even if earlier observation had been theoretically possible, the claimant did not prove that it would probably have provided a realistic opportunity to avoid the collision. The evidential uncertainties therefore fell against the claimant, who bore the burden of proof.