Cameron v Swan & Another [2021] CSIH 30Subject/issues: Liability of a motorist to an intoxicated pedestrian lying in the road In this Scottish case a man who was run over by a bakery van while lying intoxicated in the middle of the road successfully reclaimed (appealed) against the decision in the Inner House of the court of Session that he was not entitled to damages. The court considered where the onus (burden) of proof lay, the driver having pleaded guilty to an offence of careless driving under section 3 of the Road Traffic Act 1988. The court, while commenting on the judge at first instance having considered the question of applying a reverse onus, had not done so. The case is interesting for the way in which the court approached the question of liability and contributory negligence and the difficulties it faced. At the end of the day, having regard to the pursuer’s state of intoxication and his dark clothing, contributory negligence was assessed at 65%. DACB Comment: The guilty plea to the careless driving charge meant that defending an allegation of negligence was always going to be an uphill battle, so the finding of primarily liability is not surprising. What is perhaps more of a surprise is the relatively low level of contributory negligence found on the part of the pursuer, given his actions. Some would, however, question the judge’s comment that “…coming across an intoxicated person, whether vertical or horizontal, in the middle of an urban street was something which could and did happen. Even if it is unexpected and unanticipated, it is reasonably foreseeable”. Whilst it is commonly accepted that the erratic behaviour of intoxicated persons in town centres is something which drivers require to guard against, I think a lot of people may find it surprising that a court would consider that a drunk person wearing dark clothing and lying in the middle of a road would be a circumstance that drivers should be anticipating.” Rachel Rough, Partner |
Collins v Gotz 2021 WL 05016411Subject/issues: Liability of the respective parties where a vehicle emerges from a minor road C was a passenger of D1 who’s insurers were D2. D3 was the driver of the other vehicle involved in the collision and D4 their insurers. D1 emerged from a side road onto a major road turning right across the traffic and was struck on the passenger side by D3’s vehicle which was coming from their left. The speed limit on the major road was 60 mph. C was severely injured. D1 stated that before pulling out they had looked right, left, and right again and seeing no vehicles approaching had entered the junction only then realising D3 was approaching at considerable speed from their left. It was accepted that visibility to D1's right was better than to the left. D3 who, due to illness, did not give evidence, said that they had seen D1 stationary in the side road and assumed they would not pull out until he passed: he then saw the car in front of him and could not avoid the collision. D3's evidence about his speed was inconsistent, but he consistently maintained that he was under the speed limit. At trial, D1 was held to have been negligent. The court found that she had not looked to the left until she had already pulled out, despite the fact that visibility was clearer to the right and it was a 60mph road. She was driving a vehicle emerging from a minor side road onto a major road, and the onus was on her to check for traffic. She should have seen D3 before pulling out and was negligent: she should have waited before pulling out onto the main road. However, the court said that a driver should not assume that another road user would not do something foolish and D3 should have reduced speed when he first saw D1. He had either looked in the mirror too long, or been distracted, as otherwise he would have been unaware of D1 pulling out. The evidence was that if he had reduced his speed by eight miles per hour, the crash could have been avoided. D3 was therefore also negligent. As to apportionment of liability, the court said that the fault of both D1 and D3 should be looked at generally. D1 was more responsible as she was emerging from a side road onto a main road into the path of an oncoming vehicle which she should have seen. However, D3 could have taken evasive action although would not have had to do so if D1 hadn’t pulled out. The court apportioned liability at D1 – 70%, D3 – 30%. DACB Comment: This case clearly shows that it is still very difficult to persuade the courts that when a defendant pulls out of a side road onto a major road that it is completely clear as alleged. However, this case is important as it demonstrates that the courts are still open to contributory negligence arguments as well in these types of accidents if you can show that the other party is not able to convince the courts that they were definitely driving under the speed limit too as the argument is if they were the collision could potentially have been avoided. Keith Matthews, Partner |
A (a minor) by her litigation friend FA v Akram [2021] EWHC 2467 (QB)Subject/issues: Whether contributory negligence arose in relation to a child pedestrian claimant C, aged 9, was in a group of people (including adults) who were crossing the road. D’s vehicle approached the group and while the other pedestrians slowed down, C carried on and was stuck by the vehicle. At the time of impact, C was about 2m ahead of the others. The court considered, as a preliminary issue, the extent to which, if at all, C was guilty of contributory negligence. The judge rejected the argument that there had been any contributory negligence and, echoing previous case law, said: “The court must gauge “fault” by reference to what can reasonably be expected of a child with the age and characteristics of the claimant in the circumstances the claimant found herself, bearing in mind that her road sense and experience were not what would be expected of an older person. In undertaking that exercise the court must take account of all the circumstances of the case.” DACB Comment: This decision demonstrates the continued difficulty in establishing a finding of contributory negligence against younger minors. It establishes useful principles around pedestrians travelling in a group and the fact that distraction may not necessarily amount to negligence depending on the age of the pedestrian. The judgment sets out that even had there been a finding of negligence on the claimant’s part, the subsequent considerations as to causative potency and blameworthiness would not have generated a reduction in damages. The significance of this second test will likely be reinforced by incoming changes to the Highway Code. Kevan Smith, Partner |
Campbell v Advantage Insurance Company Ltd [2021] EWCA Civ 1698Subject/issues: Degree of contributory negligence of a passenger of an intoxicated driver An important decision by the Court of Appeal in relation to contributory negligence. C was a passenger in a car driven by D’s insured and was injured in an accident in respect of which primary liability was admitted. The trial judge had to determine whether C had been contributorily negligent for accepting a lift from a driver who he knew, or ought to have known, was intoxicated and whether there was contributory negligence in failing to wear a seat belt, more specifically whether the lack of a seat belt contributed to C’s injuries. The trial judge held that C’s injuries were not impacted on by the lack of a seat belt so made no deduction for it. He said: “I am unable to find that wearing a seat belt would have made any difference in outcome such as to enable me to make any reduction in damages by reason of the failure of the claimant to wear a seat belt. There must come a point where the wearing of a seat belt does not make any difference to outcome, and it seems to me to be likely that such point was reached in this case.” However, the judge made a 20% deduction on the basis that C had got into a car with a drunken driver, rejecting the argument that C was too drunk to appreciate the risks he was running. C appealed. The Court of Appeal upheld the trial judge’s decision. The lead judgment was delivered by Underhill LJ who at paragraph 50 of the judgment said: In my view it is clear that the law in this jurisdiction has come down against treating the fact that the claimant is drunk as a characteristic that can be taken into account in deciding whether he or she took reasonable care for their own safety. Para. 4-53 of Charlesworth & Percy on Negligence, 14th ed, reads: "The excuse of drunkenness must be disregarded when considering contributory negligence. It is no excuse for failing to take reasonable care that the person in question was unable to take proper care, as a result of voluntary intoxication. A person the worse for drink cannot demand a higher standard of care than a sober person or plead drunkenness as an excuse for not taking the same care when drunk, as would have been taken when sober." No authority of this court is in fact cited for that proposition, but it seems to me plainly right in principle. I see no answer to the simple example given by McHugh J at para. 39 of his judgment in Joslyn v Berryman (referred to by Dingemans LJ at para. 38 above): "If an intoxicated pedestrian falls down a manhole that a sober person would have seen and avoided, it seems impossible to hold that the pedestrian was not guilty of contributory negligence because the pedestrian's condition prevented him or her from seeing the danger." DACB Comment: An entirely logical decision by the Court of Appeal in relation to contributory negligence and the irrelevance of voluntary intoxication. It must be right that a claimant cannot, in effect, place themselves in a better position in a claim against a potential defendant by being drunk to an extent that they are unable to take proper care of themselves. Peter Allchorne, Partner |
Gul v (1) McDonagh (2) Motor Insurers Bureau [2021] EWCA Civ 1503Subject/issues: Contributory negligence where 13 year old pedestrian struck by negligent driver C was struck by a vehicle driven by D1 on a residential road at a speed of approximately 40 mph. At the time of the accident C was aged 13 years and 8 months. D had a substantial criminal record and the judge found that, on the balance of probabilities, he was engaged in a further criminal enterprise at the time of the accident. D drove away after the accident, CCTV footage showing his driving which was variously described as appalling, reckless, furious or atrocious. C was very familiar with the road and the judge found that had D been travelling at an appropriate speed the impact would not have taken place. Headphones were found at the scene and the trial judge found that they were C's and that it was likely that he was wearing them. It was not suggested that wearing the headphones was in itself negligent, but the judge said that when a person who is wearing headphones attempts to cross a road it becomes more important for them to take a careful look at the traffic because they cannot rely on their hearing to warn them of danger. In relation to contributory negligence the judge made three key findings: (1) A pedestrian is expected to keep looking and listening for traffic while crossing and if C elected to cross, given that he should have realised the car was approaching unusually quickly, then it was reasonable to expect him to have kept it under observation, even taking into account his age. The judge also found that if C had either waited for the vehicle to pass, or kept his eye on the vehicle as he crossed the accident would have been avoided. Accordingly At trial the judge made a finding of 10% contributory negligence: C appealed, advancing three grounds: a. The judge's reasoning that C ought to have appreciated the speed of the car was flawed because he equated C's perception with that of a number of witnesses who saw and heard the car in very different circumstances. The lead judgment from Lord Justice Nugee dismissed all the grounds of the appeal: his fellow judges concurred. DACB Comment: This decision demonstrates that the courts will continue to apply a varied approach to the assessment of contributory negligence in cases involving a minor pedestrian. The extent of any negligence will be aligned with expectations as to the actions reasonably expected of a child of the same age. The judgment also contains useful comment regarding the extent to which wearing headphones increases the reasonable expectation of visual attention from a pedestrian and this is an important consideration for practitioners dealing with pedestrian claims, irrespective of the age of the claimant involved. Kevan Smith, Partner |
Parker (acting by her litigation friend) v McClaren [2021] EWHC 2828 (QB)Subject/issues: Contributory negligence where claimant stepped into the road in a busy area C, a pedestrian, sustained catastrophic brain injuries after a car driven by D, a licensed private hire driver, hit her when she had stepped out into the road. D was found liable after the court found that they had been driving at 20 mph at the time of the accident when a safe speed would have been no more than 15 mph, a speed that D had accepted when giving evidence was a safe speed. The road in question was quite narrow and in an area where there were many pubs and bars, there being many people on both pavements at the time of the accident. D’s failure to see C earlier than he did was not negligent but C had made a serious error in running into the road without looking. Given the respective causative potency and blameworthiness of both C and D the court ruled that liability should be apportioned on a 50:50 basis. Judgment was therefore entered in favour of C with damages to be assessed subject to a 50% deduction for contributory negligence. DACB Comment: This case is of interest as the only witness who was called to give evidence as to the circumstances of the accident was the defendant, as the extent of the claimant’s injury left her with no recollection of how it occurred and passers-by who gave statements to the police were not called. There was a considerable amount of agreement between the parties and their respective accident reconstruction experts. The claimant had crossed one carriageway and was part way across the second when the defendant struck her with his car. The speed limit on the road in question was 30mph but even travelling at 20mph Deputy Judge Mathew Gullick QC held that was too fast given the dangers of pedestrians running out into the road, as he found the claimant did. This case shows that whilst the burden rests with the claimant, it is quite possible that even with a driver who did very little wrong, negligence can be established. Richard Wetherell, Associate |
