In a hearing of potential landmark significance, the Court of Appeal has given permission to the defendant in Probert v Moore  EWHC 2324 (QB) to appeal against a finding that a 13 year old girl was not guilty of contributory negligence when struck by a car on an unlit country lane.
Bethany Probert was struck by the car, driven by Paul Moore on the lane when he failed to see her. Bethany was not wearing reflective clothing and was wearing earphones at the time.
Should pedestrians wear high visibility clothing?
The decision to consider the Appeal has drawn criticism from Professor Ryszard Piotrowicz, Department of Law and Criminology at Aberystwyth University, who has written to the Times on the subject. He points out that there is no law requiring pedestrians to wear high visibility clothing and whilst desirable, there is no "duty" to do so.
With respect to the learned Professor, he may have misunderstood the law on contributory fault in civil matters.
The absence of a legal compulsion to take certain precautions or to act in certain ways is not definitive as regards contributory fault, and may not even be relevant.
For example, the civil courts were determining that the failure to wear a seat-belt was potentially a matter going to contributory fault many years before it became compulsory to do so. The courts considered not the legal obligation, but the generally accepted level of knowledge amongst car-users that wearing a seat belt was likely to reduce injuries.
Some readers may be familiar with the "clunk-click" campaign fronted by the late (and now unlamented) Jimmy Savile which was extremely high-profile. This was many years before the wearing of seat-belts became compulsory.
A similar debate is currently taking place as regards the potential culpability of cyclists for failing to wear cycle helmets when involved in traffic collisions. Although no reported decision has yet made a specific reduction of damages on the grounds of the failure to wear a cycle-helmet, the courts have indicated that such a finding is a distinct possibility in an appropriate case.
The Highway Code makes specific reference to the desirability of pedestrians wearing high visibility clothing or reflective items when walking on an unlit road. In Bethany’s matter, she was forced to walk in the road because of the absence of any footpath.
Absent a pedestrian unexpectedly stepping onto the road, it has long since been the view of the courts that in a collision between a car and a pedestrian, the assumption will be that the car driver is primarily at fault (see Eagle v Chambers  RTR 9 and subsequent decisions).
Of course, the fact that a pedestrian is not easily visible in the dark because of the absence of reflective material, does not alleviate the primary burden on the driver to use his eyes and headlights to watch where he is going. Many items encountered on a road are not necessarily reflective - parked cars, skips, trees etc. There is little excuse for colliding with one of those.
Examples of related cases
In those running-down cases in which contributory fault has been considered, the courts have concentrated on the conduct of the pedestrian, not on what he/she was wearing at the time.
In Wells v Trinder  (unreported) CA, a pedestrian ran out in front of a speeding motorist. The CA said that the failure of the driver to see the pedestrian until he was 10 metres away was “self-evidently negligent when she had been crossing the carriageway for some second before impact”.
In Eagle v Chambers (see above), Miss Eagle was struck whilst walking along (not across) a dual carriageway in a "distressed and emotional state". The court emphasised the high burden that was on drivers, to reflect the fact that the car was potentially a dangerous weapon. Car drivers, said LJ Hale, had to be on the lookout for pedestrians in the road.
In Goddard & Walker v Greenwood  RTR 10, the CA found a pedestrian liable for 80% of his injuries for crossing with the lights against them. The CA said that the fact that the lights were green (in the car driver’s favour) was not an absolute use of reasonable care – in other words, just because the crossing lights are green does not obviate the need to keep a close look out.
In Lightfoot v Go-Ahead  EWHC 11 (QB) a drunken pedestrian stepped out into the path of a bus on a dark country lane, to flag it down. The Judge held that if a claimant acted in a careless way by reason of his having consumed alcohol, that careless conduct could give rise to an allegation of contributory negligence. However, he noted that it was important to distinguish that from the mere fact of his being under the influence of alcohol. It was necessary to look at the claimant’s act of walking into the carriageway rather than the drunken state in which it had been done.
Mr Lightfoot’s decision to walk diagonally into the road in the dark was “an act of significant carelessness”. But the Judge concluded that a fully observant driver would have been able to avoid colliding with a drunken pedestrian who stepped into his path. The judge apportioned liability 60/40 in the claimant’s favour.
Contributory fault of child pedestrians?
In the same way that the Highway Code recommends that pedestrians wear reflective clothing, the same code specifically cautions motorists who – like in Bethany’s matter – are on rural lanes and roads:
“Drive carefully and slowly when
• approaching pedestrians on narrow rural roads without a footway or footpath. Always slow down and be prepared to stop if necessary, giving them plenty of room as you drive past” [section 206]
The allegations of contributory fault as against Bethany are two-fold. First that she ought not to have been walking on this road, at 5pm when she knew it was dark and had no verge. If correct, this would place considerable restrictions on pedestrians. Outside urban areas, the great majority of roads in the UK are unlit by street-lamps and a large percentage has no footpath at all.
The secondary allegation is that the failure to wear high visibility clothing was negligent. The court noted that the precautions which may be taken by a prudent adult in such circumstances, was not the issue to be decided as regards the actions of the 13 year-old girl. A specific requirement imposed by a court, for a child of 13 to wear a high-visibility jacket, or use a torch would be – in the words of the Judge – “a paragon of prudence”.
The Judge drew a distinction between acts which were ‘ill-informed’ and those which were (or might be) "culpable".
The matter now proceeds to the Court of Appeal. Whilst there may be cases in which the failure of a pedestrian to wear reflective clothing in particular circumstances might properly be the subject of close Appellate scrutiny; my own view is that this is not the case where the Court of Appeal is likely to interfere, or give definitive guidance on such matters.