Beware of Rehman v Estate of JG Brady  EWHC 78. Claimants and Defendants should note that it contains a serious error of principle.
Facts: A seven year old girl “hurried” 3.41 metres across a road before being struck by a car that was travelling at 28-32mph when the judge found it should have been travelling 15mph in a 20mph zone. In dismissing the submission that the claimant was contributorily negligent, Mrs Justice Sharp held (at paragraphs 49 and 50) that if the car had been travelling at even 20mph, the accident would not have happened and the little girl would have crossed the road safely.
It is incorrect to use a hypothetical position which never happened, at this stage of the exercise.
First the court needs to decide whether the actual accident was result of the failings (to use a more neutral word at this stage than fault which appears in the 1945 Act) of two people rather than one person.
So in this case the little girl had a duty to accord precedence to the motorist and she needed to look out for her own safety which she failed to do (presumptively).
The court can then revert to questions such as: would the accident have happened had the driver been travelling at 20mph; would the accident have happened had the little girl kept a proper lookout, when judging the causative effects of the acts/omissions of each party and their relative blameworthiness.
It is just about possible, using the correct methodology, to arrive at the same decision as Mrs Justice Sharp, by concluding that it is not blameworthy at all for a seven year old to cross a road without looking…although it is a considerable stretch.
But there is a ton of Court of Appeal authority against the proposition that if the accident would not have happened if, say, the speed of the car had been lower, it follows that the pedestrian was not contributorily negligent: Stoddart v Perucca  EWCA Civ 290 para 9; Belka v Prosperini [2011 EWCA Civ 623 para 11; Eagle v Chambers  EWCA Civ 623 para 6.