appeal against insurance payout because of lack of HiVis jacket.

[Cloggy]

In the UK an insurance company has appealed against the ruling to pay compensation to a young girl, who was run over, as she wasn't wearing a HiVis vest.

Churchill insurance appeals against '£1m payout' to girl, 16, because she wasn't wearing high visibility jacket | Mail Online

This may have implications for motorbike riders as how long is it before the insurance companies start appealing against pay outs for motorcyclists for the same reasons as well

 

[Nelly]

In the UK an insurance company has appealed against the ruling to pay compensation to a young girl, who was run over, as she wasn't wearing a HiVis vest.

Churchill insurance appeals against '£1m payout' to girl, 16, because she wasn't wearing high visibility jacket | Mail Online

This may have implications for motorbike riders as how long is it before the insurance companies start appealing against pay outs for motorcyclists for the same reasons as well

That's a very sad story, however there is an element to Churchill's claim that I support. I believe that pedestrians should have clothing that enables them to be seen. Most of us have had an occasion when a pedestrian has been near on invisible and caused the driver to take evasive action. On Boxing day I was coming home at dusk and there was a young lad riding on my side of the road coming towards me. He was dressed head to toe in black clothing. I just missed him. Had I hit him I would have been held liable under the law. We all need to abide the rules of the road. If we make pedestrians aware of safety the knock on effect is that we produce young aware drivers.

The Children in Ireland where I live are excellent at wearing their Hi Vis vests.
As a motorcyclist I have no objection to the proposed clothing laws. My Hi Vis gear has saved my bacon on a number of occasions.

 

[YZF73]

That's a very sad story, however there is an element to Churchill's claim that I support. I believe that pedestrians should have clothing that enables them to be seen. Most of us have had an occasion when a pedestrian has been near on invisible and caused the driver to take evasive action. On Boxing day I was coming home at dusk and there was a young lad riding on my side of the road coming towards me. He was dressed head to toe in black clothing. I just missed him. Had I hit him I would have been held liable under the law. We all need to abide the rules of the road. If we make pedestrians aware of safety the knock on effect is that we produce young aware drivers.

The Children in Ireland where I live are excellent at wearing their Hi Vis vests.
As a motorcyclist I have no objection to the proposed clothing laws. My Hi Vis gear has saved my bacon on a number of occasions.

I'm going to be careful here as it's quite a sensitive subject, but from reading the article, I feel the same way. It's obvious that many things went wrong in allowing this accident to happen, we don't have all the info, but there are definitely some questions to be asked.

At the time of the accident, the girl was just 13. This being the case, personally I'm questioning whether she should have been walking alone along a dark country lane, which is a very dangerous position to be in, even for an adult. It is mentioned that she was walking on a verge, how close or far this put her from the road we can't be sure.

It was found that the court considered 50 Mph to be too fast along this particular piece of road in these conditions, which to me implies that the driver wan't actually breaking the speed limit (In the UK country lanes, dual carriageways and motorways are generally set at the National Speed Limit, for cars that aren't towing this is 60 Mph for single carriageways, and 70 Mph for Dual Carriageways), which I feel puts him in a reasonably strong position regarding his speed. If everyone drove on the average UK country lane at the speed you can see to stop in at night, you'd probably have to be doing about 20 Mph.

From the limited info we have, I feel this would have to be considered 50/50 responsibility, as legally the girl was allowed to be there, but really shouldn't have been put in/put herself in such a dangerous situation. Personally, I feel that given the driving habits of the general UK motorist, the accident probably would have occurred with the majority of drivers given the same circumstances (based on the information we have available).

If it turns out that the vehicle had actually left the road, which hasn't been mentioned but may be the case, this would definitely be a completely different story.


Yamahaboyz

 

[Nelly]

I have to agree with you, if the car left the road then it doe's alter the weight of blame.
It is a desperately sad story and my heart goes out to the family.

[daily Telegraph] http://www.telegraph.co.uk/news/ukn...lti-million-pound-compensation-battle.htmlThe driver moved aside to make way for oncoming vehicles on the night of the incident but hit Miss Probert without seeing her in the darkness. He stopped and found her in a nearby ditch.

Back to the subject, I personally don't think that it will be to long before some form of reflective clothing is mandatory.

Neil

 

[Ssky0078]

I must be an idiot American. But if the motorist was in excess of the speed limit, and hit somebody that was actually not on the roadway itself but on the edge of the roadway in the grass, there is no way in hell I would think the pedestrian would have any fault regardless of HiVis clothing. I think our laws here say something to the effect that we are to "maintain our vehicle at a reasonable and prudent speed within the limits of the road". I'm no lawyer but I read that if there is a chance to encounter something impeding my way within the road, I need to slow and be held accountable. This guy clipped somebody that wasn't even in the road but rather what we would call the shoulder.

My dad used to rail on about wearing headphones while walking because both my brother and I would do that when we were in school. I even did it while commuting in high school by bus to downtown Seattle. I thought for sure someone would bring up that she had an MP3 player on. But, again if the car was speeding she might not have even had time to react.

In America, even if a ped is in the middle of the road and gets hit while not wearing HiVis gear the driver is pretty much almost always at fault.

One of my sisters friends and chick that was on her softball team, had a brother who suffered from a TBI back in the 80s. The kid was the same age as me about 9 or 10 at the time. He was playing out near the street on his bike (that had reflective markers). They lived just far enough down the road that if you go the speed limit you'd have plenty of time to identify someone in the road and stop. However, like this girl, the driver was going above the speed limit and hit him. He suffered a TBI and his mom had to quit her job to take care of him. They got something like a million dollar payout which back then was probably the same as 3 million now. I can say most of the money went to caring for this kid because of all the equipment, and therapist (occupational and speech) that he needed.

Insurance companies are in the game of risk. The are gambling that they can collect money from people and not pay out as much as they take in with claims. Or actually what most of them do is hold the money and gamble on the stock markets to make even more money with it so they have a greater profit margin. Sometimes the house loses, and in this case the insurance carrier lost. I agree with the poor mother about the delay in payment being unfair because it is just being a strategy for the insurer to hold on to that money longer and keep gambling it on the markets.

 

[YZF73]

I have to agree with you, if the car left the road then it doe's alter the weight of blame.
It is a desperately sad story and my heart goes out to the family.

Back to the subject, I personally don't think that it will be to long before some form of reflective clothing is mandatory.

Neil

Absolutely, regardless of who is to blame, this is a horrendous situation for all involved. Not something you would wish upon anyone.

Mandatory use of High Visibility clothing for motorcyclists is definitely in the pipeline. Personally I'm all for it, but I think it would need to be understood that this is purely to compensate for, to be quite frank, incompetence, of an alarming proportion of drivers, and actually, riders.

My take on this:

Generally I don't have many issues with other drivers. I do wear a fluo rain jacket unless it is too hot to do so (I'll actually be getting something else reflective for the summer this year), but even when I'm not wearing it I still don't have many issues, which I personally put down to the use of proper observation and awareness.

I don't personally like the 'all other road users are out to kill me' mentality, as this doesn't really address the problem, and in my opinion is no substitute for proper observation and awareness. To give an example, if I'm a passenger in a vehicle with someone with poor (but still legal) long range eyesight, I often find myself having noticed a situation unfolding ahead, long before the driver has. Observing the driver I can then see when they begin to notice the situation, and react, at which point I'm already standing on my imaginary brake pedal. :BLAA:

Generally speaking, I think it's all about being very open minded as to what may happen ahead of you. For instance, I'm approaching a junction; there isn't a vehicle there at the moment; I have right of way; one may arrive; they may observe my right of way; they may not (for various reasons). With all possibilities covered nothing is going to surprise you, which I feel allows the vast majority of situations to be avoided relatively easily. Obviously if a vehicle pulls out in front of you 10 metres ahead and you're travelling at 50 Mph you're very unlikely to avoid it.

The majority of issues I do come across currently are related to complacency and laziness, namely the rolling of junctions at too higher speed to actually stop if something is coming, and my personal pet hate, turning right at roundabouts without an indicator... do these people think others can read their minds?

A little bit of a thread hijack there but I feel this is important in relation to the use of High Visibility clothing, you can have your thread back now :thumbup:


Yamahaboyz

 

[Cloggy]

It is a really sad case and my thoughts go out to her and her family.

I agree we don't know all the facts so it's difficult to make a judgement call.

It is said in the article:

A High Court judge found the driver 100 per cent liable for the crash but his insurers, Churchill, have appealed, claiming it was partly Bethany’s fault.

and

at the High Court in London Bethany was cleared of any contributory negligence and Churchill was held to be fully liable.

Stating that the liability of the driver has been confirmed, according to the judge, taking all things into consideration.

An insurance giant is appealing against paying up to £5million compensation to a schoolgirl left brain damaged in a car accident – because she wasn’t wearing a high-visibility jacket at the time.

They later appealed with the only reason being that she should have worn a hivis jacket.

Now if this appeal gets the original verdict turned over then it will set a new precedent, as they are saying that she should have known better being a horse rider (and so aware of the dangers). This case could be refered to in later cases involving motorcyclists in the same way

Neil I'm generally in agreement with the use of hi vis (I use a vest when dark or bad weather) but not for making it law. If this precedence is set I'm afraid its just a slippery slope.

My daily jacket is red and black (about 50/50) with lots of reflection strips/markings, ok my trousers are black but also with reflection areas and my helmet is metallic silver, but where do you draw the line. IMHO next thing they'll be saying you don't get your payout as you didn't have a fluorescent helmet

 

[YZF73]

[daily Telegraph] Girl hit by car 'should have been wearing high-visibility jacket', Churchill claims in multi-million pound compensation battle - Telegraph driver moved aside to make way for oncoming vehicles on the night of the incident but hit Miss Probert without seeing her in the darkness. He stopped and found her in a nearby ditch.

Neil

Interesting, this doesn't clarify whether the vehicle was actually off the road or not, but it definitely suggests that it was at least very close to the edge of the road.


Yamahaboyz

 

[jspansel]

Is there a law there that says pedestrians must wear HiVis while walking??? If not that is absolute crap of the insurance to try and weasel out of this. How could the girl be at fault even .00001% I do not agree with this at all. Unless she was actually IN the road and not off the driving area. These types of rulings and crap laws are what ruins this world. Blaming the innocent for the offenders actions. Yeah, that always works.

 

[YZF73]

I must be an idiot American. But if the motorist was in excess of the speed limit, and hit somebody that was actually not on the roadway itself but on the edge of the roadway in the grass, there is no way in hell I would think the pedestrian would have any fault regardless of HiVis clothing. I think our laws here say something to the effect that we are to "maintain our vehicle at a reasonable and prudent speed within the limits of the road". I'm no lawyer but I read that if there is a chance to encounter something impeding my way within the road, I need to slow and be held accountable. This guy clipped somebody that wasn't even in the road but rather what we would call the shoulder.

My dad used to rail on about wearing headphones while walking because both my brother and I would do that when we were in school. I even did it while commuting in high school by bus to downtown Seattle. I thought for sure someone would bring up that she had an MP3 player on. But, again if the car was speeding she might not have even had time to react.

In America, even if a ped is in the middle of the road and gets hit while not wearing HiVis gear the driver is pretty much almost always at fault.

One of my sisters friends and chick that was on her softball team, had a brother who suffered from a TBI back in the 80s. The kid was the same age as me about 9 or 10 at the time. He was playing out near the street on his bike (that had reflective markers). They lived just far enough down the road that if you go the speed limit you'd have plenty of time to identify someone in the road and stop. However, like this girl, the driver was going above the speed limit and hit him. He suffered a TBI and his mom had to quit her job to take care of him. They got something like a million dollar payout which back then was probably the same as 3 million now. I can say most of the money went to caring for this kid because of all the equipment, and therapist (occupational and speech) that he needed.

Insurance companies are in the game of risk. The are gambling that they can collect money from people and not pay out as much as they take in with claims. Or actually what most of them do is hold the money and gamble on the stock markets to make even more money with it so they have a greater profit margin. Sometimes the house loses, and in this case the insurance carrier lost. I agree with the poor mother about the delay in payment being unfair because it is just being a strategy for the insurer to hold on to that money longer and keep gambling it on the markets.

I think you may have misunderstood my post.

Just to clarify my position:

In my opinion the article implies that the driver was not breaking the speed limit. Also, when we are talking about a grass verge, we may be talking about a strip of grass possibly no more than a foot or two wide between a hedge and a thin, twisty, unlit, country lane.

There is also the subject of whether, at 13 years old, the girl should have been there in the first place to consider. Our road network in the UK is very different to the US; you definitely wouldn't see me walking or cycling down some of the country lanes around where I live in the dark.

I absolutely agree that if a driver is found to be speeding, or left the road in making contact with a pedestrian, that they would very likely be held completely liable.


Edit: Just to clarify, I'm not saying that the insurance companies Hi Vis claim is at all valid, but I feel the other reasons mentioned above may take some of the blame away from the driver (depending on the finer details of the accident).


Yamahaboyz

 

[SweaterDude]

was she walking down the correct side of the road, ie facing oncoming traffic. because, if she was not, then it is definitely partially her fault. im not going to place blame, but generally here in the states people are given too much entitlement. everyone is holding everybody else's hand telling them its not their fault for this and that , blah blah blah. i dont want this to turn into a "beating your kids argument" but people need to start taking blame when its theirs.

 

[greg]

On Boxing day I was coming home at dusk and there was a young lad riding on my side of the road coming towards me. He was dressed head to toe in black clothing. I just missed him..

i've seen loads of people like that in manchester riding bikes around with no lights at night. My friend pointed out that they are probably drug dealers

 

[Ssky0078]

I think you may have misunderstood my post.


Edit: Just to clarify, I'm not saying that the insurance companies Hi Vis claim is at all valid, but I feel the other reasons mentioned above may take some of the blame away from the driver (depending on the finer details of the accident).


Yamahaboyz

Thanks, I appreciate the point of clarity. I know things are different in the UK than the US, and the major luxury we have is the abundance of space. I mean for most major streets they are 3 or 2 lanes in each direction with a suicide lane in the middle for left turns. So, we don't have very many tight spaced country lanes to contend with.

was she walking down the correct side of the road, ie facing oncoming traffic. because, if she was not, then it is definitely partially her fault. im not going to place blame, but generally here in the states people are given too much entitlement. everyone is holding everybody else's hand telling them its not their fault for this and that , blah blah blah. i dont want this to turn into a "beating your kids argument" but people need to start taking blame when its theirs.

I honestly never understood the logic of walking opposed to traffic. I get it, if you see a car swerving from far down the road, but in many situations the incoming car is above speed or makes a sudden erratic movement. I had a friend get literally run down on a straight stretch of country road by a little old lady that could barely see over the wheel on a straight stretch of road. She wasn't walking opposed to traffic but this lady made a poor correction in her driving and ran down my friend and clipped the friend she was walking with. Luckily she only had a tore up knee and a concussion making a more or less full recovery.

 

[YZF73]

Thanks, I appreciate the point of clarity. I know things are different in the UK than the US, and the major luxury we have is the abundance of space. I mean for most major streets they are 3 or 2 lanes in each direction with a suicide lane in the middle for left turns. So, we don't have very many tight spaced country lanes to contend with.

I honestly never understood the logic of walking opposed to traffic. I get it, if you see a car swerving from far down the road, but in many situations the incoming car is above speed or makes a sudden erratic movement. I had a friend get literally run down on a straight stretch of country road by a little old lady that could barely see over the wheel on a straight stretch of road. She wasn't walking opposed to traffic but this lady made a poor correction in her driving and ran down my friend and clipped the friend she was walking with. Luckily she only had a tore up knee and a concussion making a more or less full recovery.

I believe the rule about walking toward oncoming traffic is purely there to try and make the best of a bad situation. By walking towards traffic you are no worse off than walking away, however you are given the chance of seeing something happen that may allow you take avoiding action.

I'd like to think that this is also something the court has taken into consideration in this case.


Yamahaboyz

 

[fzsixx]

Yeah this is sad and im an insurance agent.... But here in America I does not matter the pedestrian always has the right of way even if there walking on the freeway. A car will always win in a collision against a person. My heart goes out to her. -Matt

 

[kiltkop]

This is truely a tragedy. But in most cases, striking a pedestrian is going to be the fault of the motorist. Very rarely is the pedestrian at fault, it does happen.

But to blame the girl for not wearing reflective clothing is like blaming a girl for being raped for dressing attractively(not like a slut/tart).

What will they think of next? Now pedestrians be mandated to wear helmets with 360 deg flashing LED lights? Insurance companies/lawyers are sick.

 

[YZF73]

I was talking with someone else about this story last night, he agreed that from the information we have the driver wouldn't necessarily be 100% to blame.

However, he did enlighten me to an important issue the court was likely to have taken into consideration. This is that - as the driver of the vehicle was insured against accidents such as this one, and the girl is now in need of substantial financial support - with the insurance company being in such a strong position financially, the court has likely put 100% blame on the driver solely to ensure that the girl gets the financial support she needs, which I'm sure we all agree is the most important thing in this type of situation.


Yamahaboyz

 

[Ssky0078]

I was talking with someone else about this story last night, he agreed that from the information we have the driver wouldn't necessarily be 100% to blame.

However, he did enlighten me to an important issue the court was likely to have taken into consideration. This is that - as the driver of the vehicle was insured against accidents such as this one, and the girl is now in need of substantial financial support - with the insurance company being in such a strong position financially, the court has likely put 100% blame on the driver solely to ensure that the girl gets the financial support she needs, which I'm sure we all agree is the most important thing in this type of situation.


Yamahaboyz

Well if that's the case then I hope the court plays with the numbers. and say they want to appoint 10% of the blame on the girl then they up the payout to 5 million so that the insurance company pays 4.5 million. Or something along those lines. I think the OP was on to something though about it being ridiculous for someone who has a specialized skill (motorcycle training, horseback riding, etc) be held to a higher standard as a pedestrian.

In the US we even have the Good Sammaritan Law to protect health care providers/workers who may come upon an accident and for a period of time would just pass it by because of fear of being held to a higher standard of assistance than an untrained person should something happen during their assistance to the people involved in the accident. I think that law acknowledges that outside of that specialized environment the trained individual shall be treated just like anybody else.

 

[Wh0M3]

I feel this is a sad case, and I have heard of others where people walking along the side of the road at night were hit.

Having spent some time in the military where the dreaded reflective belt was introduced into combat zones I have mixed feelings about this topic. I hated wearing that thing I understood why it was done (just not in a combat zone).

Military talk aside, I see people walking all the time wearing dark clothing at night. It drives me nuts because it is hard to see them. At least animals have reflective eyes. I do see the occasional runner or biker who is wearing something reflective and in my mind I'm thanking them.

While I feel it's a good idea for people to wear something Hi-Vis, I hate making it a law in any country or state.

 

[Nelly]

You have clarified the point very well.
Neil

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