Negligence of pedestrians

Whenever a pedestrian comes into collision with a ton or so of moving metal, the odds are that personal injury will result.  It may often appear to defendants that the court will approach the matter almost on the presumption that the driver must bear at least some responsibility where his car collides with a pedestrian.  Certainly courts have historically tended to place considerable weight on the car’s effectiveness as a weapon of destruction and the commensurate need for those in control of a motor vehicle to pay real attention to what is going on around them.  Since the slightest lapse of attention can have such catastrophic results for the pedestrian, it often follows that just such a lapse is enough to constitute negligence.  It tends to be a rare case in which it was reasonable for a driver not to have seen a pedestrian prior to impact.  Whilst it goes without saying that every case will turn on its facts, this article looks at a few recent cases in this area in which pedestrians and motor vehicles have come into contact with each other and considers the proportion of blame attributed to the parties in each case.

Driver wholly to blame

It is perhaps a rare case in which an injured pedestrian bears no responsibility for his own misfortune (or more likely, it is simply rarely litigated to trial).  Since accidents of this kind usually happen when a pedestrian encroaches onto the drivers’ territory, as opposed to vice versa, it will often but not invariably be the case that some of the blame must rest with him. 

Thomas v Kostanjevec [2004] EWCA Civ 1782: where a pedestrian, crossing a road at a safe place, was hit and killed by a motorcyclist proceeding at a faster speed than was appropriate in all the circumstances, no contributory negligence was found.  The pedestrian could not have seen the motorbike when he set off across the road and there was nothing he could reasonably have done to avoid the accident.

Adult pedestrian wholly to blame

It is often argued on the claimant’s side, particularly in weaker cases, that driver and pedestrian should have seen each other and so, where there is a collision between the two, the presumption should be that there should be an initial finding of fault on each side.  However, a finding of no fault on the part of the driver should follow where the driver could not have seen the pedestrian in time to take evasive action, or where no evasive action would have been effective.

Turner v Arriva North East [2006] EWCA Civ 410: the claimant tried to cross a pelican crossing in a busy area near a supermarket when the lights were against her.  She did not look to her right.  Traffic in two of the three lanes was stationary.  She was hit and killed by a bus travelling at a reasonable speed in the third lane, a designated bus lane.  It was found that the bus driver could not have seen her until it was too late for him to do anything about it and the claim failed.

Sam v Atkins [2005] EWCA Civ 1452: where a claimant walked into the path of the defendant’s motor vehicle at night and at a time when, because of a stationary van blocking her view to her left, the driver had no opportunity to see her and no chance to stop whatever speed she was driving at, it would be the counsel of perfection to say that the driver should have driven in a different manner.

Six of one...

More common is the situation where both parties should have seen each other, or where each could have taken steps to avoid the accident, and the court is faced with the need to apportion responsibility between them.

Jukes v Etti & MIB [2006] EWHC 2493 (QB): a claimant who sought to cross the road where there was a vehicle coming (albeit one with a broken headlight) which he should have seen was 40% liable.  He had confronted the oncoming traffic to see whether it would give way to him, and when it did not he tried to save the situation by crossing as fast as he could.  The driver, who effectively admitted that he had not seen the claimant until he was in his immediate path, was 60% to blame.

Parkinson v Chief Constable of Dyfed Powys Police [2004] EWCA Civ 802: the defendant was refused permission to appeal against an apportionment of 35/65 in the pedestrian’s favour where he walked out past a parked taxi into the path of the driver’s car.

Rose v South East London & Kent Bus Company QBD, Deputy Judge Foskett, 22 April 2004: the pedestrian crossed a road divided by a traffic island surrounded by a railing.  She reached the island and walked along the narrow roadside strip (some 18” wide) between the railing and the road in order to reach a pelican crossing.  As she did she slipped into the road and was struck by a bus driver.  The driver had seen her walking along the strip but had suffered a momentary lapse in concentration and did not check where she was before moving his vehicle.  Liability was apportioned 50/50.

Adjei v King Court of Appeal, 19 March 2003: the pedestrian was trying to cross a busy carriageway when he was struck and killed by the driver of a coach.  The driver ought to have slowed down or given a warning to the pedestrian and primary liability was established.  However there was clear visibility and given the nature of the road and the traffic conditions the Court of Appeal allowed the defendant’s appeal and apportioned liability 60/40 in the pedestrian’s favour.

Goddard & Walker v Greenwood [2002] EWCA Civ 1590: the claimants were jogging along the side of a busy A-road when they came to a junction controlled by traffic lights.  The defendant driver came up behind a lorry when the lights were on red, pulled alongside the lorry and, seeing that the lights had changed to green, continued to drive.  As he did so he struck the joggers coming from his nearside on the crossing.  Although the driver was not held to be liable at first instance, the Court of Appeal allowed the joggers’ appeal because his view of the crossing was obscured by the lorry and a reasonable driver would have anticipated that there might be pedestrians there.  However the joggers were each held to be 80% liable for their own injuries.

Wells v Trinder Court of Appeal 9 July 2002: the claimant was struck by the defendant driver as she crossed a road in the dark from a bus lay-by on one side to the lay-by on the other.  The driver had seen cars and people but had not slowed down as he did not think there was any danger.  He was driving fast, had his headlights on dipped rather than full and simply failed to see the pedestrian.  At first instance there was no finding of contributory negligence on the basis that the claimant did not have a chance to avoid the collision.  However on appeal the Court of Appeal found that, if the driver did not see the pedestrian until it was too late, the reverse was also true.  Her mother had seen the car approach but she had not.  It was also her responsibility to ensure that the road was clear and a finding of 25% contributory negligence was appropriate. 

Drunken pedestrians

A particular hazard for a driver is the drunken pedestrian whose sense of invulnerability may well be heightened by alcohol.  But whilst many insurers might think themselves off the hook once it becomes clear that the victim was under the influence, in fact the courts tend to show a marked reluctance to follow suit even in cases of extreme drunkenness.  A driver must be alert to all risks on the road and people displaying little concern for their own safety, for whatever reason, are just another hazard of the road.  As always, the issue is the relative contribution each party made to the accident.

Eagle v Chambers [2003] EWCA Civ 1107: the claimant, a drunk and emotional 17 year old girl, was weaving along the side of the road.  Other drivers had seen her and urged her to stop.  The defendant, just on the drink-drive limit, struck her with the offside of his car.  A finding of 60% contributory negligence at first instance was changed on appeal to 40%, the court stating that it was rare for a pedestrian to be found more responsible than a driver unless she had moved suddenly into the vehicle’s path.

Green v Bannister [2003] EWCA Civ 1819: in the course of reversing some 35 yards down a constricted and poorly lit cul de sac at night the defendant drove over the claimant, who had collapsed in a drunken stupor in the road.  On the basis that a reversing driver should have paid particular attention to what might be in the car’s path and ought to have checked her mirrors and looked over her left as well as over her right shoulder the Court of Appeal declined to interfere with an apportionment of 60% contributory negligence on the part of the pedestrian.

Lunt v Khelifa Court of Appeal 22 May 2002: a pedestrian whose blood alcohol limit would have put him three and a half times over the permitted alcohol limit for drivers, and who stepped into the road when the defendant was some 20-25 yards away, was 33% liable.  Alcohol might have explained why the claimant did what he did, but was irrelevant to the question of the blameworthiness of what he did.  The defendant himself did not see the claimant before the point of impact and there was no evidence of braking.  The Court of Appeal found that this apportionment was generous to the claimant, but declined to interfere.

Cook v Thorne & Parkinson [2001] EWCA Civ 81: the claimant was travelling with the second defendant in a car but got out to be sick as a result of excessive alcohol.  The road was straight and unlit, and it was night time.  He was struck by the first defendant coming from the opposite direction.  The second defendant was held to be 30% primarily liable, the first defendant 70% primarily liable, and the claimant was found to be 30% contributorily negligent for causing an obstruction on an unlit road.

Children

The hazards of child pedestrians are well known to every driver.  It is taken as read that children will not take the degree of care for their own safety that an adult would do.  Adult drivers must be alert to the risks of children behaving like children even when there is traffic around.

Ehrari v Curry [2007] EWCA Civ 120: a 13 year old girl who stepped out from between parked cars in a busy street with other children around, giving a lorry driver perhaps a second’s notice, was 70% responsible for her own injuries.  An appeal by the driver failed on the basis that he should have been keeping a careful watch for pedestrians in front of him, particularly since he knew that children crossed at that point.  Had he seen her, he could have swerved and avoided her.  There was no cross appeal.

Goundry v Hepworth [2005] EWCA Civ 1738: the 4 year old claimant was in a group of pedestrians who had crossed to the middle of the road to wait for cars coming from their left to pass.  The first passed without incident but the claimant ran out and was hit by the second, driven by the defendant.  At first instance the court found that the driver ought to have slowed right down or stopped to let the group cross given their vulnerable position.  This was overturned on appeal – whilst many drivers might have stopped, many more, driving with care, would not have done, and so the claim failed.

Honnor v Lewis [2005] EWHC 747 (QB): an 11 year old who failed to see a car coming from his right on a busy road was 20% responsible for his own injuries.  The driver who failed to notice him standing by the side of the road or starting to cross, and who neither slowed his car nor sounded his horn, was 80% to blame.

Lunn v Kennedy HHJ Grenfell, Leeds County Court, 4 March 2003: where a 3 year old ran out past a parked van into the road and was hit by a car driving at 10-15mph, there was no finding of liability.  The driver would have hit the girl at any speed and sounding a horn would have made no difference.  The events took place in a split second and amounted to an unavoidable accident.

James v Fairley [2002] EWCA Civ 162: the 8 year old claimant was crossing a busy A-road.  She had left two other children on the pavement but there was no evidence that they were doing anything unusual such as to cause a prudent driver to brake.  She negotiated the first northbound lane but was struck by the defendant in the second northbound lane, who had not seen her until she was virtually in his path.  At first instance the judge found that the defendant was not liable and would not have been able to avoid the collision.  If he had been, a finding of contributory negligence of 60% would have been made.  The Court of Appeal dismissed the claimant’s appeal (commenting that the finding on contributory negligence was surprising) on the basis that the judge proceeded on findings of fact he was properly entitled to make.   

KATHERINE DEAL

March 2007