In the important judgment in Eagle v Chambers [2003], Hale LJ concluded: “It is rare indeed for a pedestrian to be found more responsible than a driver unless the pedestrian has suddenly moved into the path of an oncoming vehicle.. The court has consistently imposed upon the drivers of a car a high burden to reflect the fact that the car is potentially a dangerous weapon.”

The received wisdom is that drivers in charge of a half ton piece of metal have a duty to ensure it does not endanger those around them. The question that is often debated at court is just how high is that burden. Does it impose a counsel of perfection such that all possible eventualities of pedestrians’ movements must be anticiapted? Not quite, but drivers are expected to anticipate the possibility that pedestrians standing at the side of the road looking as if they may be about to cross will probably do so.

In the case of Belka v Prosperini [2011] the claimant had crossed two lanes of a dual carriageway to reach the central refuge before then crossing the other side without looking and was struck by the defendant. The judge still found for the claimant on the basis that ‘with a better look out and a slight easing of speed I am satisfied that the accident would have been avoided’. Although contributory negligence was found against the claimant in the proportion of two thirds, the case still imposes a high burden given the patently high risk taken by the claimant of walking into potentially fast moving traffic without looking.

In the case of children, the burden on the driver is even higher. In the case of Paramasivan v Wicks [2013], the defendant was driving in the dusk along a suburban road with shops and pavements on each side when, without warning, a child of 13 ran across the pavement between two parked cars and into the road. The car struck him. Even though the driver was travelling at 25 mph and says he did not notice the child until he hit him, the court found that he should have noticed the gathering of children and should have slowed to about 15mph. It was estimated that the driver had just over two seconds to see the pedestrian and to slow down but failed to do so. Again, although the claimant succeeded in establishing primary liability, contributory negligence was set at 75%.

Generally, where the pedestrian crosses the road suddenly and unexpectedly leaving the driver no time to react, courts may be reluctant to attribute blame to the driver but the degree to which the pedestrian’s movement is sudden or unexpected may determine the scale of apportionment between the parties.