After a dance, the plaintiff, a girl of nineteen, was walking along the pavement of a poorly lit street at about 10.45 p.m. with an escort. The pavement was covered with snow and slush. From time to time, they had to step off it and walked in the roadway in or near the gutter. Her escort was walking in front close to the kerb with the plaintiff some way behind slightly to his right. The plaintiff was struck from behind by the defendant’s car. The plaintiff’s escort testified that he neither heard nor saw the car which struck the plaintiff but that he saw it drive past him at a fast speed of about 30 to 40 miles an hour with full beams on.
Held: The driver was entirely responsible.
Stephenson LJ assumed the girl, clad in a dark blue coat and naval blue trousers without ‘wearing or carrying anything white, light-coloured or reflective, walking in the roadway nest to the kerb and not on the pavement and not on the right hand side of the road facing oncoming traffic but with her back to it’, to be in breach of the Highway Code: ‘The perfect pedestrian would, I suppose, have crossed to the other side every time he found the left hand pavement uncomfortable to walk on and, if he found the other pavement no better, would have walked in the roadway on the other side facing the traffic and carrying a lamp. But the question is not what was ideal but what was required by common sense; was the common sense codified in these three rules for pedestrians applicable to the conduct of this particular road user on foot, the plaintiff, at this time and place? More precisely, has the defendant proved that the plaintiff failed to take reasonable care for her own safety by leaving the pavement when they got too slushy in order to walk a few feet out in the road for distance of about 20 yards in the straight street in a built up area with street lights on? My answer to that is an unhesitating ‘No’. Even if it were ‘Yes, there was some negligence on her part’, I should not feel able to find that it made any real contribution to the accident. If she had been on the pavement, she would not have been injured, and if the defendant had proved that he was driving at a reasonable speed with suitable lights on and at least tried to give a proper lookout, I might not have regarded his negligence as substantially the sole cause of the accident.’
A breach of the Highway Code by a road user, itself creates no presumption calling for an explanation or a presumption of negligence but is one of the circumstances on which one party is entitled to rely in establishing negligence.
Judges:
Stephenson LJ
Citations:
[1972] 3 All ER 864
Jurisdiction:
England and Wales
Cited by:
Cited – Probert v Moore QBD 9-Aug-2012
The claimant, a 13 year old girl, was severely injured walking along the carriageway on a 60mph unlit road at 5:00pm on a December day. A hedgerow obliged her to walk in the road. The defendant driver said that she was contibutorily negligent in . .
Lists of cited by and citing cases may be incomplete.
Negligence
Updated: 15 May 2022; Ref: scu.471194
