Pedestrians v MIB untraced rejections: On the road to nowhere?


Posted by Rachel Flannigan, a partner at Express Solicitors and head of technical road traffic accident claims

Flannigan: The MIB needs to do a thorough job of investigating

I have dealt with hundreds of MIB untraced cases in my 16 years at Express Solicitors and have had plenty of cause to appeal decisions to refuse awards.

Just recently I have found that the MIB seems to want to reject pedestrian cases without good reason based on the allegation that they are the author of their own misfortune. The handler from the MIB shows no regard to the full circumstances of the incident, the Highway Code or case law. I have had two such cases of late.

Case 1

The claimant, a woman who was almost 70 years old, was looking to cross a main road in Bradford. She was crossing at a dropped kerb with traffic coming from her right, with the intention of reaching a pedestrian refuge island in the middle of the carriage way. It was one lane in each direction.

The pedestrian refuge had on it the bollards you often see, featuring a white arrow in a blue circle pointing the route a car must take around the refuge (i.e. keep to the left and don’t overtake the island in the opposite carriageway). There is a picture of the location:

The untraced motorist was coming from the claimant’s left and so was in the opposite carriageway to the one she had to cross to get to the refuge. In the untraced driver’s lane was a queue of slow-moving traffic.

The claimant checked to her right and the way was clear. She stepped into the road and was hit by the untraced motorist from her left. The untraced driver had decided not to wait in the queue but to overtake on the wrong side of the road and the refuge.

The MIB rejected the claim under clause 11(1) of the 2017 Untraced Drivers Agreement on the basis that the accident was not the untraced driver’s fault but the claimant’s because she failed to look left before stepping into the road, even though she was crossing a lane where traffic was only permitted to come from her right.

The claimant appealed. We adduced the above location view from Google images and highlighted that not only should the untraced driver not have been in that carriageway and so close to the kerb but also that, contrary to section 130 of the Highway Code, he passed over an area of white diagonal stripes/chevrons when it was unnecessary.

In addition, he failed to heed a blue traffic sign, which drivers are required to follow. This meant that, when he failed to keep left around the island, he broke the law and would have faced charges had he stopped at the scene.

The claimant found case law in support of the position:

Aldridge v Metropolitan Police Commissioner (6 March 1998, ,Unreported CA) – Bingham and Berrymans Motor Claims Cases (11th Edition), page 342

The claimant was crossing Oxford Street between stationary vehicles to get to the central reservation where she stopped and checked to her left. The road was clear and so she began to cross and at that moment she became aware of a police car with its lights and siren on travelling towards her on the wrong side of the road. She was struck by the vehicle.

At first instance, the defendant driver was found 100% liable. On appeal that was reduced by a third for contributory negligence because the police vehicle was permitted to travel on the wrong side of the road and because other people on the central refuge had not stepped out as they all heeded the siren and approach of the police vehicle.

Our case can be distinguished as the untraced driver had no such right to travel on the wrong side of the road and there was nothing to alert the claimant of the approach of the vehicle until the last second, when she could not avoid the collision.

Tremayne v Hill [1987] RTR 131, CA – Bingham and Berrymans Motor Claims Cases (11th Edition), page 394

The defendant disobeyed a red traffic light and drove into a junction being crossed diagonally by the claimant despite there being a light-controlled crossing nearby. It was held at first instance that the accident was caused solely by the defendant’s negligence, upheld on appeal. The claimant had no reason to anticipate the defendant would ignore the traffic lights. The defendant was seriously careless and any possible failure to keep a look-out was not a contributory factor.

Our case is similar in that no reasonable pedestrian would have expected a driver to ignore the mandatory requirement to cross the island on the left and so would not have anticipated any vehicle travelling on the right-hand carriageway from their left-hand side.

We appealed to the arbitrator, who found in favour of the claimant and no contributory negligence.

He said: “In my view the driver of the car that hit the applicant was plainly negligent. He choose to drive on the wrong side of the road, on the wrong side or the hatched lines in the road and on the wrong side of the centre island containing ‘keep left’ bollards and drove in excess of the speed limit….

“It was quite unnecessary for him to drive in that way, and it was a thoroughly dangerous piece of driving.”

To expect her to look left would have been a “counsel of perfection” as it was not reasonably foreseeable that the untraced driver would drive as he did breaking so many rules/laws.

This case is now progressing. The claimant suffered fractures to her lower back, soft-tissue injuries and psychological symptoms (phobia and depression).

Case 2

The claimant, a 43-year-old woman, was crossing at a pedestrian crossing in London controlled by lights. In the middle of the crossing again was a pedestrian refuge island but the crossing was one continuous crossing with one traffic light control. There were two lanes in each direction.

The claimant got to the crossing when the green man was already showing in her favour. She crossed the first two lanes to the island. At that point, the beeping accompanying the lights had stopped and the green man was flashing; she increased her walking speed and started to cross the far two lanes.

The car in her first lane remained stationary and allowed her to cross. As she got into the second lane, the car there moved forwards and struck her.

The MIB’s rejection was again under clause 11(1). It stated that there were inconsistencies in the claimant’s medical records about the accident circumstances, with some records indicating that a motorbike, rather than a car, was involved.

The MIB also stated that the untraced driver was not to blame as the claimant tried to beat the lights. It blamed the claimant solely for the accident.

The claimant appealed, highlighting that errors in the records were not hers – her accounts in statements and the claim form were consistent and it appeared that administrators at the hospital had used the wrong code for recording the type of accident, as clearly there was no motorbike involved.

The claimant referred to sections 196 to 198 of the Highway Code relating to what vehicles must do at pedestrian crossings. The evidence clearly supported the claimant coming from the untraced driver’s right hand side, meaning she had crossed two lanes to the island and then a further lane on the driver’s side of the road and into his lane before being struck.

Clearly, the lights were not on red before she reached the island as the car in lane one on the driver’s side did not start to move before she reached the island. As such, the untraced driver had a duty to make sure the crossing was clear of pedestrians before pulling onto the crossing.

The fact the car in lane one had not moved should have been an indicator that there was a pedestrian still crossing.

The arbitrator reviewed the papers and agreed that the claimant was already on the crossing in the defendant’s carriageway and there to be seen. The driver was therefore negligent.

However, a 10% reduction for contributory negligence was made based on the claimant crossing after the green man had started flashing; she would have known she was taking a risk crossing after that time.

The claimant is now waiting to be examined – she sustained a fracture to her humerus.

The MIB seems very keen to place the blame on such accidents at the door of the claimant alone without any real regard to the circumstances and evidence. Perhaps it is because the value of these claims is more than minimal and the costs of medical evidence and treatment will not be small.

However, a solicitor should not be resigned to the fact that the MIB is right – consider the evidence as a whole and research the Highway Code and case law to support appeals, as the MIB does not seem to be doing this.

The MIB needs to do a thorough job of investigating and providing evidence for its decisions if it wishes to maintain a rejection under the Untraced Drivers Agreement, or face a significant rise in costs as more appeals are permitted or cases referred back for further investigation.




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