A 13 year
old girl, Hope Fennell, died in November 2011 when she was hit by a
HGV lorry on a busy suburban high street in
Birmingham.
Hope had
been heading home after school. As she went to cross a road at a
pedestrian light crossing, pushed her bicycle next to her, she was
hit by the lorry. The lorry driver had been using his mobile phone
shortly before he hit Hope, though it was not possible to know
whether he was looking at his mobile phone at the time of the
incident.
The
police investigated the incident, collected evidence and the driver
was prosecuted, however, he was not found guilty of any driving
offence because the Crown failed to prove that he was using his
mobile phone at the time of the incident or not paying
attention.
A civil
compensation claim was brought against the lorry driver and his
employer (he was driving in the course of his work at the time).
The burden was on Hope’s mother to prove that the lorry driver was
at fault, which was a very upsetting and stressful
process.
Because
the burden of proof is on the Claimant in these claims and the
Defendant is always likely to argue that a cyclist or pedestrian
was at least partly to blame, Hope’s solicitors,
Anthony Collins made a tactical settlement offer early on in
order to ‘buy off’ the common risks in pedestrian collision cases
and avoid the inevitable upset of protracted
litigation.
If the
incident had happened in many countries in Europe, there would have
been presumed liability and Hope’s mother would not have been
subjected to the upset of having to prove the lorry driver was at
fault in order to get justice her daughter. This would have been
the case even if liability was denied, so she would not have had to
make a tactical settlement offer in order to avoid making
compromises later on because of the litigation risks.
Hope’s
mother would also have had closure earlier if presumed liability
applied because she would not have had to wait for the outcome of
the very lengthy criminal proceedings before bringing the civil
claim. It was 3 years after Hope died before the civil claim was
concluded, which was very difficult for Hope’s grieving mother to
cope with.
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