Rehill v Rider Holdings Ltd [16.05.12]
Court of Appeal increases level of contributory negligence of Claimant who stepped in front of a bus, but only from one third to 50 per cent.
As the courts move further towards protecting pedestrians who put themselves in danger, we look at the implications for defendant drivers, whose standard of driving is coming under ever increasing scrutiny.
The tide started to turn against defendants in Eagle v Chambers . At first instance, a finding of 60 per cent contributory negligence was made against a pedestrian. However, in the Court of Appeal, Lady Justice Hale reduced this to 40 per cent. She commented that courts have consistently imposed upon the drivers of cars a high burden, to reflect the fact that the car is potentially a dangerous weapon.
Drivers will no doubt feel particularly uneasy about the Rehill decision. The increased finding of liability against the pedestrian still left the bus driver with an equal apportionment of blame in a case where, on the facts, the pedestrian placed himself in obvious danger. The finding of liability may have been equal, but defendants could be forgiven for feeling that, when a pedestrian claimant is injured, the evidential watermark for a defendant is unfairly raised.
It is unsurprising that there could be a higher expectation of driving standards in cases involving professional drivers. However, the Rehill decision does seem to lean that much closer to a counsel of perfection being expected of all drivers, regardless of the circumstances. This is a worrying development for defendants.
Any employer that operates a fleet of vehicles should ensure that refresher training is given to its drivers on a regular basis. Incidents such as this can have both criminal and civil implications (for the individual driver and the company).
Drivers need to be reminded to fully observe their surroundings and the road layout ahead. For example, a pedestrian might be stationary, waiting at the side of the road, but may not hear a vehicle approach (if say they are wearing headphones or are facing away from the direction of travel) and could suddenly step out onto the road. Whatever the circumstances, drivers should be told to err on the side of caution and reduce the vehicle’s speed if there is any possibility that a pedestrian might step out, regardless of who has the right of way.
On 28 December 2005, a Mr Shad was driving one of the Defendant’s buses in Bradford city centre. The bus stopped at traffic lights at a junction where it was to make a 90 degree left turn. When the lights changed to green, it began to move forwards. Immediately ahead of it was a controlled pedestrian crossing. The red man on the crossing lights was showing against pedestrians. However, the Claimant suddenly stepped out onto the crossing in front the bus. The driver braked, but was unable to prevent the pedestrian being struck by the bus, which resulted in serious crush injuries.
The police prosecuted the driver for driving without due care and attention. The evidence at that time was that the pedestrian had crossed from the central island to the driver’s offside. Subsequent CCTV footage showed that this was incorrect and the pedestrian had stepped off the nearside pavement. By this time, the police proceedings had concluded and the driver had pleaded guilty to careless driving.
At first instance, Mr Recorder Miller found the Defendant liable, subject to one third contributory negligence on the part of the pedestrian.
Lord Justice Richard, on appeal, was persuaded that a higher finding of negligence against the pedestrian was appropriate. He held that:
- The driver ought to have noticed the Claimant as he stepped off the pavement and this was a clear breach of duty.
- The driver failed to brake as quickly as he should have done.
- The Recorder was entitled to find that the wheel would not have gone over the Claimant if the driver had braked promptly.
- There were factors in the case telling strongly in favour of a higher contribution by the Claimant. His lack of care made a collision with the bus inevitable. However, the really serious injuries arose not from the initial impact but from the wheel of the bus going over the Claimant, which was caused by the lack of prompt braking. Overall, this was not a case where the pedestrian should be found more responsible than the driver. A finding of one half contributory negligence was considered by the Court of Appeal to be appropriate.