Update | Road traffic: apportioning liability to pedestrians

The impact of a vehicle with a pedestrian can have tragic consequences for the pedestrian even when the vehicle is travelling at a relatively low velocity at the point of impact. In 2011, 453 pedestrians were killed and 5,454 were seriously injured in road traffic accidents in the United Kingdom. The courts have long recognised that because of the disproportionate consequences to motorists and pedestrians respectively of collisions between vehicles and pedestrians, it is appropriate to demand a high standard from motorists by which they should be judged in claims for damages arising out of road traffic accidents. Certainly many pedestrians fail to take reasonable care and some are foolish or reckless but in apportioning the liability of the negligent motorist against the contributory negligence of a pedestrian, allowance must be made for the causative effect of the negligence of the motorist, who is in charge of potentially lethal equipment, as well as the respective culpability of the parties.

Crossing the road

In Rehill v Rider Holdings [2012] EWCA Civ 628 during the post-Christmas sales in Bradford city centre, the claimant stepped into the road at a busy junction despite the presence of a red man pedestrian signal. He was hit by a bus, which was turning a corner at the junction, so that he fell into the road and was then run over by the front, nearside wheel of the bus. The bus driver ought to have noticed the pedestrian as he stepped out. Appropriate braking may not have prevented the bus from striking the claimant but it would have saved him from being run over. The Court of Appeal re-adjusted the trial judge's assessment of contributory negligence from one third to one half but noted the observations in Eagle v Chambers [2003] EWCA Civ 1107 that "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".

A more colourful example of pedestrian misbehaviour occurred in Ayres v Odedra [2013] EWHC 40 (QB) where a 29-year-old man had been drinking in Leicester city centre. He moved in front of the defendant's car at a set of traffic lights and pulled down his trousers and pants exposing his genitals. The defendant at first halted but then drove forwards, so that the area of the offside headlight struck the claimant. The defendant had misjudged the claimant's progress as the claimant shuffled in front of the car, his progress hampered by the fact that his trousers were down. The claimant struck his head on a kerb and the car ran over his right leg. His injuries were severe. In respect of primary liability Swift J found that the motorist's priority should have been to observe the claimant's movements and to wait until the claimant was safely clear of his car before moving forwards and thus the defendant had been negligent. The pedestrian's contributory negligence was assessed at 20 per cent having regard to the respective blameworthiness but, more importantly, the causative significance of the parties' respective negligence.

Excessive speed

The most common allegations made against motorists relate to excessive speed for the circumstances and failure to make proper observations. In Casey v Ail [2012] All ER (D) 241 the claimant had been out for an evening drinking with friends. He had consumed about four pints of beer. His route home was across a busy arterial road into Birmingham where he attempted to cross at a pedestrian crossing. He had gained the central reservation without a problem and he had to cross a further three lanes of the next carriageway. He attempted to beat the lights and jogged across two lanes, in front of a stationary Mini, which was in lane two, only to be hit by the defendant, who was driving a Mercedes in the third lane. The defendant was approaching at about 20-25 mph and at the moment of the impact the traffic light was green in his favour. The trial judge gave an ex tempore judgment exonerating the defendant but in so doing he did not make a finding as to whether the defendant had been keeping a proper lookout and whether he had failed to observe the claimant as he crossed the first two lanes. Jackson LJ found that it could not be implied necessarily from the judgment that the trial judge had considered this issue in dismissing the claim. Damages had been agreed, on a full liability basis, at £16,000 so, having regard to the disproportionate expense of a re-trial, the Court of Appeal decided to determine the issue itself - a course of action with which the claimant agreed. On the basis that the claimant had been partially obscured by the stationary Mini in the second lane, it was determined that the defendant had not been negligent.

Unavoidable collision

In some instances it is simply not possible for a motorist to avoid colliding with a pedestrian. Such a case was Pursoty v Vaghani [2013] All E R (D) 214 where a 19 year old student was crossing a three lane carriageway in broad daylight in London. She took a route through traffic and then stepped out in front of a van. It was submitted on behalf of the claimant that the van should have been travelling at about 15 mph but the trial judge found that this would place the standard unreasonably high and it was unrealistic for a van to crawl along at 15 mph in broad daylight on a busy road in London.

Of course in order to establish liability in negligence it is vital not only to prove that the defendant was in breach of duty but that the breach caused injury. Although this is a trite observation, it can be overlooked with unfortunate consequences. In Boyle v Commissioner of Police of the Metropolis [2013] EWHC 395 (QB) a 17-year-old man fell into the road from a bus stop in the early hours just as a marked police car was approaching. The claimant was hit by the police car and sustained serious injuries. The police car, which was not responding to a call-out, was being driven at about 33 mph whereas the speed limit was 30 mph. Turner J found that the only breach of duty on the part of the police officer was that he had been driving at about five mph faster than a reasonably prudent motorist would have driven. The evidence was that had he driven at a slower speed the collision between the motorcar and the claimant would not have been avoided and thus the breach of duty did not cause the accident to happen. The remaining question was whether there was evidence to determine if the injuries sustained would have been less severe had the impact occurred at the slower speed. There was no such evidence, because the medical evidence that was before the court addressed the issue of quantum only and the claim failed in its entirety. In his judgment Turner J reminded himself of the adroit observations of Laws LJ in Ahanonu v South East London & Kent Bus Co. [2008] EWCA Civ 270: "There is sometimes a danger in cases of negligence that the court may evaluate the standard of care owed by the defendant by reference to fine calculations elicited in the leisure of the court room, perhaps with the liberal use of hindsight. The obligation thus constructed can look more like a guarantee of the claimant's safety than a duty to take reasonable care".

Young or vulnerable

In road traffic accident cases context is everything and in cases involving vulnerable road users such as children, courts are rightly cautious as to the standard to be expected of young pedestrians. In Probert v Moore [2012] EWHC 2324 (QB) a 13-year-old girl decided to walk home from some stables along a rural, unclassified road in Northamptonshire rather than waiting for a lift home from her mother. It was about five pm on an early December evening. The claimant was wearing dark clothing and she was listening to music on her headphones.

The road was subject to the national speed limit of 60 mph for cars and the defendant was travelling at more than 50 mph, heading in the same direction as the claimant, in a Saab 93. He passed an oncoming vehicle and then saw a dark figure, he moved to the offside but did not brake and struck the claimant, who suffered tragic injuries. The judge found that a reasonably prudent driver would not have exceeded 40-45 mph and thus the defendant's speed was excessive and causative of the accident. In determining the issue of contributory negligence the claimant's actions had to be judged by the standard of the ordinary 13-year-old. It had been argued that she should have: waited for her mother, borrowed a high visibility jacket or a torch from the stables and that she should not have been using her headphones. She was exonerated from any blame, while an adult could be expected to take such precautions, it was too much to expect of a 13-year-old to act in such a way which was the standard of a "paragon of prudence". In relation to the use of the headphones, the evidence was that the claimant would not have heard the defendant's car in any event because of the noise of the car, which had just passed going the other way, and therefore their use made no difference. The Court of Appeal has granted permission for an appeal.

A 13-year-old girl was criticised in Jackson v Murray [2012] CSIH 100 when she crossed a two-way road in Scotland from behind a minibus from which she had just alighted and she was struck by a motorcar which was travelling too fast. The trial judged had described the girl's actions as "reckless" but on appeal this was found to have been inappropriate and in apportioning liability it was important to bear in mind that that a car is a potentially dangerous weapon. A finding of 90 per cent contributory negligence was reduced to 70 per cent by the Inner House of the Court of Session. Even with the reduction to 70 per cent it is not clear that the court placed sufficient emphasis on the causative potency of the motorist's negligence.

The latter case involved momentary inattention and carelessness on the part of a 13-year-old for which she was heavily criticised; Probert v Moore involved a more considered decision to walk home in the dark in dark clothing on a country lane in respect of which she was not criticised at all. It is difficult to reconcile the result in Ayres v Odedra, where a drunken pedestrian deliberately debagged himself in front of the defendant's vehicle and his damages were reduced by 20 per cent, and Jackson v Murray where a momentary act of carelessness by an innocent 13 year old led to a 70 per cent reduction in damages.

At the risk of being soft-hearted, I suggest that the approach taken in Probert v Moore as to the standards of an ordinary 13-year-old is to be preferred to the harsher approach of the Scottish courts in Jackson v Murray.