Those handling motor injury claims recognise that it is rare for a Court to find more than 50% contributory negligence against a pedestrian struck by a car or other motor vehicle. Apportionment is, generally speaking, in favour of the injured pedestrian.
The rationale for this is that the causative potency of the driver's acts leads to a finding of more blame lying with the driver. In a nutshell, the vehicle is perceived as a potential lethal weapon, drivers know this (or should know it), so owe a higher duty to take care. This can lead to some surprisingly lenient judgments in favour of pedestrians in cases where the blame seems to lie predominantly with the pedestrian.
Two recent cases demonstrate this approach to apportionment.
In February 2015, The Supreme Court gave judgment that a 50/50 finding was appropriate in an accident involving serious injuries suffered by a pedestrian hit by a car. At first instance, a finding of 90% contributory negligence (in itself a very unusually high finding) had been made; on appeal that was reduced to 70%, but the Supreme Court – albeit by a slim majority of 3-2 – reduced that again to 50%.
On 4 June 2015, the Court of Appeal in another case allowed a 20% finding in a case where the first instance Judge had found no contributory negligence.
So, perhaps it is understandable why it is difficult to predict the outcome of contributory negligence allegations!
Jackson v Murray
This case involved a 13 year old girl getting off a school bus in fading daylight. The bus stopped on the opposite side of the road leading to the girl's farm home, and a car had stopped behind the bus. The bus had its hazard warning lights on. The Defendant's car was driving in the opposite direction at 50 mph (speed limit 60 mph). The car did not slow down when the driver saw the bus stationary.
The Claimant walked out between the back of the bus and the car behind it. She took 1 – 2 steps, and then ran across the path of the Defendant's car, which hit her causing very serious injuries. The value of the claim was agreed at £2.25m.
It was found that:
- The car driver was travelling too fast and was negligent for not slowing on the approach to the bus;
- The principal cause of the accident however was the Claimant's "reckless folly" in either not looking to her left before running, or looking and not heeding the danger of the approaching car.
A finding of 90% contributory negligence is a very rare finding. Obviously the trial Judge who heard the evidence felt that the pedestrian had essentially caused the accident.
The appeal court reduced the contributory negligence to 70%. The injured pedestrian however remained unhappy with that and appealed to the Supreme Court.
The majority of the Lords in the Supreme Court reduced the finding to 50%. They said in terms that it is not possible for a court to arrive at an apportionment that is demonstrably correct, and apportionment under the Law Reform (Contributory Negligence) Act 1945 is inevitably a somewhat rough and ready exercise. They took account of the Claimant's young age, and apportioned liability equally.
2 of the Lords disagreed and said they would not have interfered with the finding of 70% contributory negligence.
Vann & Others v Occidental – Companhia De Seguros S.A.
Mr & Mrs Vann were leaving a restaurant in the Algarve late at night. They had to cross a single lane highway to reach their parked car. It was dark, and street lighting poor. When they began to cross, the road was clear, however at some point soon after they stepped out into the road, a car came from their right, over the crest of a hill. Although it had its lights on and the engine sound was capable of being heard for some seconds before the collision, they did not see the car. They had walked nearly the whole width of both lanes when the car struck them, killing one and seriously injuring the other. The driver only saw them momentarily before the collision, braked hard but could not avoid hitting them.
It appears that they were in conversation, and did not notice the oncoming car, even though it would have been visible for several seconds (during which it travelled 115 metres).
The car was travelling at an average of about 59 mph, with a speed limit of 56mph, and a factual finding that a safe speed to approach the crest of the hill, with no vision beyond it on approach, would have been 43 mph, The driver was found to be travelling significantly too fast.
The case was decided under Portuguese law, but for the purpose of contributory negligence issues, essentially the same principals applied.
At first instance, the High Court Judge found no contributory negligence. It was found that the road was clear when the pedestrians began walking across the road.
On appeal, the Court of Appeal decided that there was contributory negligence, as the injured parties could have seen and heard the oncoming car (and therefore taken evasive action) if they had been paying proper attention. The reduction was only 20% however, as the driver's speed was found to be the principal cause of the accident.
Other Case Law
If 3 sets of high powered Judges in Jackson v Murray reached such differing conclusions, then what hope is there for practitioners and claims handlers in predicting the likely outcome of contributory negligence arguments? The only firm conclusion is that it will be a rare case where a finding of more than 50% is made. Some guidance can be obtained from the following cases.
- Eagle v Chambers (Court of Appeal, 2003): a 17 year old Claimant was walking along the broken white line in the middle of the road in an emotional state. Other motorists had warned her to get off the road, and she had responded in an abusive way. She was struck by the offside of the Defendant's car. At first instance a finding of 60% contributory negligence was made. The Court of Appeal reduced that to 40%, despite her obvious folly.
- Smith v Chief Constable of Nottinghamshire Police (Court of Appeal, 2012): a 17 year old girl moved into the path of a police car travelling at speed. The car was taking evasive action to avoid other pedestrians. The first instance Judge found the Claimant 75% liable. The Court of Appeal reduced that to one third. Lord Justice Ward said: "…the more positively potent factor was the negligent driving of what was and what unfortunately became a dangerous weapon" (despite the fact that the police car had blue flashing lights on and a siren).
- Ehrari v Carry (Court of Appeal, 2007): a 13 year old girl crossed the road outside her school to catch a bus, walking out from behind a parked vehicle into the path of a truck and was struck by its wing mirror. She was found 70% liable.
The old adage that every case turns on its own facts remains true, but it is clear from these cases that to obtain a finding of more than 50% liability against a pedestrian requires something amounting to gross negligence on the part of the pedestrian. Even when you might think your case has that factor, it is still difficult to be certain that a reduction of more than 50% will be made if the case is fought to trial.