The issue of whether a pedestrian who was not wearing hi vis should be contributory negligent when hit by a car was recently considered in the case of O’Driscoll v Bundred.

Philip Scarles
Philip Scarles
Solicitor - Health & Injury

On 2 February 2017 at about 6.15 pm, Mr O’Driscoll was walking along Broad Walk, Wilmslow, a suburban street. Carrwood Road is a minor road which joins Broad Walk from the north at an acute angle. The width of Carrwood Road at the junction is 37 metres.

Mr O’Driscoll was walking west along the northern pavement of Broad Walk. As he was crossing Carrwood Road, a car travelling west along Broad Walk went past Mr O’Driscoll. Following that car, Professor Bundred driving in his Mercedes car turned right into Carrwood Road, on the incorrect side of the road, and collided with Mr O’Driscoll. Mr O’Driscoll suffered a serious head injury.

Professor Bundred was convicted of driving without due care and attention. In Mr O’Driscoll’s personal injury claim, Professor Bundred admitted primary liability but alleged contributory negligence, one allegation being that Mr O’Driscoll was not wearing hi-vis clothing.
CCTV was taken from a house adjoining the junction. Mr O’Driscoll was wearing dark clothing. He reached the kerb, proceeded to cross Carrwood Road and took about 8 steps into the road before the collision.

Professor Bundred invited the Judge to draw the inference that Mr O’Driscoll must have known that cars were wont to cut the corner when turning off Broad Walk into Carrwood Road. This was not accepted, but in any event the Judge found that Mr O’Driscoll would have had no reason to suppose that a car would cut the corner anything like the extent that Professor Bundred did when the accident occurred.

As to Professor Bundred’s speed, this was calculated by the police investigator at between 29 and 35 miles an house. The CCTV showed that he was indicating right at the time of the collision, but there was no reliable evidence about when he started to indicate.

The CCTV showed that the junction was illuminated by two street lamps and that Mr O’Driscoll was also illuminated by the lights of the car in front of Professor Bundred.
The Judge rejected Professor Bundred’s submission that Mr O’Driscoll failed to keep a proper look out. Mr O’Driscoll would not have expected to encounter any vehicle travelling from Broad Walk into Carrwood Road until he was approaching the centre line, by which time he was entitled to assume that he had right of way, as rules 8 and 170 of the Highway Code make clear.

The Judge also rejected Professor Bundred’s allegation that Mr O’Driscoll not wearing hi vis clothing was a contributory factor. He was undertaking a regular trip from his workplace to his parked car, walking along a pavement on a residential street. It would be a counsel of perfection to require him to wear different clothing.
The Judge therefore rejected all of Professor Bundred’s allegations of contributory negligence and gave judgment for Mr O’Driscoll for 100% of the value of his claim.

This article was originally published in the April 2020 issue of South East Biker Magazine.

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