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One for the Road - Kate Lamont, 9 Gough Square

18/03/13. The Courts are not unfamiliar with RTA claims involving intoxicated pedestrians. Decisions tend to be quite fact specific but that is not to say that there is not some common rationale to them. A couple of recent decisions illustrate how the courts may approach the issue of liability and the last one should act as a warning to anybody acting on behalf of a Claimant in any RTA claim.

Before looking at those decisions it is worth reiterating some established principles. In Lunt v Khelifa [2002] EWCA Civ 801, the Court of Appeal criticised submissions on apportionment from both the Appellant and Respondent that put substantial emphasis on the fact of the pedestrian claimant’s intoxication. Latham LJ determined that whilst the Claimant’s intoxication was of undoubted significance in explaining why he behaved as he did it was his actions that needed to be considered when determining apportionment. He further recognised the high burden consistently placed on drivers to reflect the fact a car was a potentially dangerous weapon.

In considering the extent of apportionment it is always worth bearing in mind the words of Hale LJ in Eagle (by her Litigation Friend) v Chambers [2003] EWCA Civ 1107 at para.16 : “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”.

In January of this year judgment was handed down in the case of Robert Ian Ayres (by his Litigation Friend) v Mahesh Odedra [2013] EWHC 395 (QB). The Claimant was an ex-marine with two tours of duty in Iraq under his belt who had been on a night out with friends. It was clear on the face of the evidence that the effects of his intoxication were significant. In the moments before he was struck by the Defendant’s vehicle his trousers were around his ankles and he was walking in a crablike fashion to his left, facing the front of the Defendant’s vehicle. The Judge found that the Defendant had wanted to get past the Claimant as quickly as possible as the lights ahead were green and he was concerned that the Claimant may urinate on his car. He found he had attempted to manoeuvre around him, misjudging the time it would take for the Claimant to get to a position where he would be clear of the vehicle. The Court did not find, as had been suggested by witnesses on behalf of the Claimant, that the Defendant had deliberately driven into the Claimant or driven forward reckless as to whether he might strike him. The Judge found primary liability established on the basis that it would have been evident that the Claimant was drunk and potentially unsteady and that the accident could have been avoided had the Defendant remained stationary. In relation to contributory negligence the Claimant argued that whilst the Claimant’s behaviour was reprehensible it was not causatively potent. The Judge disagreed and determined that whilst the Defendant had to accept the far greater share of the responsibility the Claimant’s drunken state and fact his trousers were around his ankles hampered his ability to move freely. The fact he was not moving at a normal speed led the Defendant to misjudge his position and mistakenly believe he could get around him; for this the Judge found the Claimant to be 20% contributorily negligent.

In Jonathan Boyle v Commissioner of the Police of the Metropolis [2013] EWHC 395 (QB) the Court was concerned with a Claimant who had spent the evening in the pub drinking with a friend. At approximately 2am the Defendant driver, a police officer on duty but not responding to an emergency, was driving at 33 – 35 mph on a road with a speed limit of 30mph. The Claimant was in the vicinity of a bus stop on the same road. As the Defendant driver approached the bus stop the Claimant fell into the road in front of him. It was not in dispute that the Defendant driver was speeding but it was argued on his behalf, with reference to section 38(7) of the Road Traffic Act 1988, that this this did not necessarily denote a lack of care. The Judge found that this proposition was not, in itself, enough to exonerate the Defendant and that a reasonably prudent driver would have been driving about 5mph slower in an area where it was at least foreseeable that “the occasional intoxicated pedestrian or pedestrians might still be at large”. He found in this regard that the Defendant was in breach of his duty of care to the Claimant. The Judge did not make findings of breach on other pleaded grounds of breach, namely that the Defendant had failed to keep a proper look out or should have positioned his vehicle differently. In relation to causation, the evidence of both the Claimant and Defendant’s experts was that the Claimant would have to have been travelling slower than the Judge had adjudged to be reasonable in the circumstances to avoid striking the Claimant by breaking or swerving. The ultimate conclusion of this case comes as a salutary reminder to those instructed on behalf of claimants. The Claimant had adduced no evidence as to effect of speed on the extent of his injuries and therefore, finding as he did that the accident itself was unavoidable, the Judge had no way of determining the causative effects of the Defendant’s breach of duty.

Kate Lamont

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