The courts have consistently imposed upon drivers a high burden to reflect that a vehicle is potentially a dangerous weapon. On this basis, practitioners are mindful that drivers will almost always have some liability if they injure a pedestrian; they are after all fragile and vulnerable. There was a surprise therefore when the Court of Appeal in Scott v Gavigan (2016) recently ruled a pedestrian wholly liable for his injuries.

The pedestrian was injured when he took the decision to cross the road, across the path of a moped rider coming the other way and who was travelling at the speed limit. The moped rider admitted not braking on his approach to the pedestrian.

The trial judge found the fact the moped rider should have braked earlier was the limit of his negligence. Holding the pedestrian entirely to blame, the judge said the risk of the pedestrian crossing where he did (10 metres from a crossing) was not one that the moped rider should have reasonably foreseen, the pedestrian’s responsibility was greater than the moped rider’s given his gross carelessness fuelled by alcohol consumption and that the action in crossing the road was of equal damage to the moped rider as it was to himself.

The pedestrian appealed.

Foreseeability

The pedestrian argued that failure to anticipate carelessness on the part of others is to be regarded as careless in itself. He said the moped rider should have been travelling under the speed limit, that it was negligent to travel any faster and that had he been going more slowly he would have avoided the collision. He also argued it was entirely foreseeable that a pedestrian might attempt to cross the road where he did.

The court held that it is not incumbent on a driver to take steps to avert a risk of which he neither was nor should have been aware. The trial judge was entitled to find as he did on the basis that a) the road was long and straight giving the moped rider a view of the pedestrian for some distance b) the pedestrian had walked beyond a designated crossing before deciding to cross and c) nothing gave the moped rider any indication that he was going to cross when he did.

Error of law

It was further found that the judge had come to the error in finding the moped rider at fault for not braking any sooner. He found, as a matter of fact, that there were no vehicles were ahead of the moped rider and the only duty upon him, therefore (under rule 126 of the Highway Code) was to ensure he travelled at a speed (subject to the limit) which allowed him to stop within the distance he could be seen to be clear. Having found it not reasonably foreseeable that the pedestrian (or anyone else) would cross at that point) and with 10 or more metres between the two when the pedestrian crossed, it could not be said that the moped rider had any duty to stop or slow down before the collision.

Reckless behaviour

The court was persuaded by the moped rider’s argument that the pedestrian was so intoxicated that his ability to care for himself and other road users was impaired, that he ran in such a way towards the moped that, even if it had been travelling slower, the accident was still a real possibility, that his crossing itself was not foreseeable and that the pedestrian had been grossly careless.

Conclusion

Drivers find themselves at risk of being liable (in whole or in part) where it is found that they should have foreseen a risk that materialised and on that basis they have a duty of care not to injure even the foolish. Take Green v Bannister (2003) for example where a pedestrian got 40% of his award after being run him over, despite him being drunk and lying inert on the road. However, where the driver has surmounted the hurdles of foreseeability, negligence and causation, a pedestrian should not be surprised if the court denies him a remedy.