The Case of Hope Fennell: 13yr old girl (pedestrian)

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.