Balancing the scales with regards to contributory negligence.

August is National Road Victim Month. This is an annual campaign started by the charity Road Peace to remember those killed on our roads. August has been chosen as it is particularly relevant given the fact that the very first victim of the roads was killed in August in 1896 in London. There is also an increased risk of children being injured or killed while on holiday from school and there is an increased risk of those travelling on holiday being involved in a car crash.

Road Peace provides a range of support services and has been actively campaigning for the last 15 years for reforms in relation to the UK liability system so that it is made fairer for cyclists and pedestrians. They believe that an introduction of a presumed liability system would spark a national debate on the duty of care of drivers. Pedestrians and cyclists are of course the most vulnerable road users and the most at risk from injury and death on our roads.

So what is the current liability system in the civil courts in relation to pedestrians and cyclists?
What is the standard of care expected of drivers and how does this affect the law in relation to contributory negligence for pedestrians and cyclists?

The general law to be applied in relation to apportionment for Contributory Negligence is found in Section 1(1) of the Law Reform (Contributory Negligence) Act 1945. However this does not give guidance as to how this should be calculated but to say that damages should be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.

One of the main cases to consider in relation to contributory negligence and pedestrians in recent years was the case of Jackson (Appellant) v Murray and another (Respondents) (Scotland) (2015) which went to the Supreme Court. This case involved a young girl stepping off a minibus on a country road and stepping out behind the minibus into the path of an oncoming car. The driver was driving too fast and had made no allowance for the possibility that the child might attempt to cross in front of him. The car hits the child and causes her to sustain severe injuries. If he had been travelling at a reasonable speed and keeping a proper look-out he would not have hit the child. The original trial judge found that the accident was caused by the driver’s negligence but that the child was also contributory negligent. The trial judge assessed her contributory negligence at 90% and therefore award of damages was reduced accordingly. The case was appealed and the claimant’s contributory negligence was further reduced to 70%.

The case was further appealed at the Supreme Court on 20 October 2014 with the central concern being how the court would apportion responsibility in such a case. Lord Hodge’s judgment discussed how although each case must depend on its particular facts the case law does set out general principles. One of these principles that favours the pedestrian is the ‘recognition of the moral blameworthiness or, alternatively, the causative potency of driving a motor vehicle without exercising reasonable care, because a vehicle can be a dangerous weapon.’ Lord Hodge considers that this is due to the vehicle’s potential to injure. He however dissented in that he reasoned that the decision take by the Inner House in the previous appeal could not be said to fall outside the limits of reasonable disagreement. The appeal was allowed with an apportionment of 50% for contributory negligence.

Jackson v Murray offered much needed clarity as to the approach to be taken when assessing contributory negligence in pedestrian cases. The recognition of the inherent danger of motor vehicles and driving at speed appears to be a positive thing for pedestrians who are victims of a road traffic accident and wish to pursue a civil claim for compensation. It is therefore interesting to observe how the case law has evolved since this decision.

A case following this which dealt with negligence in a pedestrian road traffic accident was that of AB (by his mother and next friend CD) v Lisa Main (2015) in which the Queen’s Bench found that the defendant was primarily negligent for failing to appreciate that ‘there was a real, significant and increasing risk’ of the claimant running into the road. The claimant was an 8 year old boy who was playing at the side of the road and stepped into the road colliding with the defendant’s vehicle and suffering serious brain injuries. It was held that the Defendant should have kept the claimant under proper observation and reacted appropriately by taking her foot off the accelerator and covering her brakes.

Evidence submitted by an accident reconstruction expert found that had the defendant done so the impact would have taken place at a speed of just over 20 mph thus the impact would have been reduced and the serious brain injury avoided. There was a finding made of 20% contributory negligence due to the claimant’s age suggesting that had the claimant been older there would have been a greater degree of contributory negligence.

The Court of Appeal applied the decision of Jackson v Murray in Maria Sabir (Suing by her litigation friend, the official solicitor) v Nano Osei-Kwabena. (2015). The facts of the case are that a pedestrian misjudged an approaching car’s position and attempted to cross a busy suburban road. The approaching motorist would have had a clear view of the claimant however did not see her and hit her causing her to suffer significant injuries including a traumatic brain injury. The original trial judge assessed the pedestrian’s contributory negligence at 25%. The defendant appealed this decision however the appeal was dismissed. Jackson v Murray was applied finding that in the circumstances driving a car without keeping a proper lookout where pedestrians were reasonable expected to be present indicated a considerable degree of blameworthiness. The driver ought to have seen the claimant and taken his foot off the accelerator in the circumstances.

Another recent case which was appealed to the Court of Appeal was that of Wormald (by his mother & litigation friend Dawn Wormad) v Ahmed (2016). The defendant, a taxi driver, appealed the case that found him to be primarily liable for an accident involving a pedestrian crossing diagonally in front of his taxi. The decision that calculated contributory negligence at 40% was upheld. It was held that a reasonably prudent driver would monitor the road ahead.

All the above cases discussed appear to support the approach that a vehicle should be treated as a dangerous weapon and therefore a greater onus placed on drivers to take into account the possible presence of pedestrians on the road.

However a recent case taken to the court of appeal may seem to muddy the waters slightly with regards to contributory negligence and pedestrians. The case of Darren Scott v Nicholas Joseph Gavigan (2016) appealed the decision of the courts to hold that a pedestrian was held to be wholly responsible for running across the path of an oncoming moped whilst under the influence of alcohol. The appeal was dismissed on the grounds that the pedestrian’s behavior was found to not be foreseeable and therefore a finding of negligence on behalf of the driver could not stand. It was held that if this disentitled him to recovery, there would be many cases in which recovery would be denied where damages had been awarded in the past. This finding may appear extreme however it is important to note the particular facts in this case and the recklessness of the pedestrian which led to the decision.

It would appear that the courts are following the general principles set out in James v Murray which recognises the inherent danger associated with driving a motor vehicle and the vulnerability of pedestrians. Where there is a finding of contributory negligence this should be balanced against the duty on the motorist to drive in a manner which takes account of all reasonable foreseeable risks. In circumstances where the pedestrian acts in a manner so reckless and therefore entirely unforeseeable should it be the case that the pedestrian does not recover damages.