Contributory Negligence

The Law Reform (Contributory Negligence) Act 1945 provides:

“1. Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall 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.”

“4. Fault means negligence, breach of statutory duty or other act or omission which gives rise to liability in tort or would, apart from this Act, give rise to the defence of contributory negligence.”

Overview

Pleading & Proof

• A party who asserts contributory negligence against a Claimant has the burden of specifically pleading it;
• No matter how strong the argument of contributory negligence may be, a court will not make such a finding unless it is pleaded as an issue;
• The Defendant has the legal burden of proof;
• The Defendant has the burden of proving, on the balance of probabilities, (a) fault and (b) the causative effect of the fault; and
• The Defendant has the evidential burden of proof.

The Correct Approach

In Tompkins v Royal Mail Group PLC [2005] EWHC 1902 it was held that the correct way for a judge to consider the issue of contributory negligence is as follows:

• (a) Assess the parties’ causative contributions to the accident and injury;
• (b) In light of (a), decide what would be a just and equitable apportionment.

The Court of Appeal held that it was open to the court, when considering (b), to consider the extent of the Defendant’s departure from reasonable standards of care

A finding of contributory negligence is made when the Claimant’s own negligence contributed to the damage of which he complains. Therefore, in those cases where the Claimant would have sustained the same injury even if he had taken reasonable care for his safety (such as by wearing a seat belt) his damages will not be reduced.

Standard Of Care

The standard of care in contributory negligence cases is judged by what is reasonable in the circumstances: Harrison v MoD [1993] CLY 3929.

The test of what amounts to reasonable care in the circumstances, and whether or not the Claimant took such care, must be approached broadly.

The concept of reasonable care is objective.

The Claimant must take such care as is reasonable to avoid those accidents which fall into the general class of accidents, as opposed to simply that particular accident.

Be Prepared For The Failings Of Others

A reasonable Claimant must also be prepared for the fact that others may not exercise reasonable skill and care in their conduct. In Grant v Sun Shipping Company [1948] AC 549, at 567, Lord du Parcq stated: “A prudent man will guard against the possible negligence of others, when experience shows negligence to be common.”

In Boardman v MoD [2010] LAWTEL 12th November it was held that whilst a driver is not expected to foresee the folly of other road users, he was under a duty to take into account that children, especially young children, might act without thinking and in an unpredictable manner. Therefore, a driver is under a duty to drive in a manner that takes account of those matters.

However, where a Claimant has been thrown off his guard by the conduct of the Defendant and reasonably induced into believing that he may proceed in safety, less care will be expected of him [Glasscock v London Tilbury and Southend Railway [1902] TLR 295].

The Objective Test

The test of whether a Claimant was contributory negligent is objective. The court will consider what should be expected of a person who is taking reasonable care for his/ her safety.

However, for those persons who do not have a mental or physical impairment the court will apply the objective test. Significantly, the court will disregard the varying degrees of intelligence or dexterity in the population [Baxter v Woolcombers [1963] 107 SJ 553].

Intoxication

The fact that a Claimant was intoxicated will not prevent a finding of contributory negligence being made. The relevant principles to consider were discussed in the case of Lightfoot.

Lightfoot v Go Ahead Northern [2011] EWHC 89 – A bus that was driven by the Defendant’s driver was travelling at 40mph along a dark country lane. The speed limit was 50mph. The Claimant, who was very drunk, had walked into the carriageway in order to flag down the bus.

The trial judge held that if a Claimant acts in a careless manner due to being drunk the careless acts could amount to contributory negligence. However, it is necessary to consider the Claimant’s act of walking into the carriageway rather than the fact that he was drunk when he did it.

The Just & Equitable Test

As noted above, the 1945 Act requires a court to reduce damages to such extent that is just and equitable. This test involves consideration of:

• The relative blameworthiness of the Claimant and Defendant; and
• Causative effect.

The court will consider whether the act or omission of the Claimant caused or contributed to his injuries and, if so, to what extent.

There is no scientific test that can be applied in all cases, but the following factors are relevant:

• (a) The principles applicable to whether the Claimant’s fault caused or contributed to the accident and injuries are the same as those governing whether the Defendant caused the accident and injuries [Jones v Livox Quarries [1952] 2 QB 608];
• (b) It does not matter whether the operative fault by the Claimant occurred before or after the Defendant’s wrongdoing [The Volute [1922] 1 AC 129];
• (c) Common sense principles should be used to judge cause and effect on the facts of each case [Stapley v Gypsum Mines [1953] AC 663]; and
• (d) Causes that are too remote will be disregarded [Stapley, above].

A passenger in a car is required to wear a seatbelt and a motorcyclist is required to wear a helmet. The court will consider the effect of, for instance, a helmet not having been worn. If the injuries would have been the same had the helmet been worn then the allegation of contributory negligence will not be established [Traynor v Donovan [1978] CLY 2612].

The personal views and preferences of a Claimant regarding the taking of precautions will rarely be relevant. However, if a Claimant has a genuine medical condition that would be aggravated by him wearing a seatbelt or helmet etc, the court will consider that matter [McKay v Borthwick [1982] SLT 265].

Likewise, members of the Sikh community are not expected by the courts to wear helmets.

The court will consider the actions of the Claimant. In Parmar v Big Security [2008] EWHC 1414 the Claimant was pushed by a nightclub doorman into a barrier, sustaining head injuries. However, the court held that the Claimant had been violent in the nightclub and that such behaviour was part of the chain of events that led to him being pushed by the doorman. His damages were reduced by 30%.

Physical Or Mental Impairment

Where the Claimant has a physical or mental impairment the test of reasonable care must be assessed by reference to his particular circumstances, impairment, knowledge and capacity to understand risk [Paris v Stepney BC [1951] AC 367].

The degree of care that is expected of a person who has a mental impairment will be different to that expected of someone who does not. The courts have held that a blind person is only required to take such care for his/ her safety as the disability allows [Haley v London Electricity Board [165] AC 778, at 806, 809].

However, not all impairments will be relevant to the allegation of contributory negligence. The impairment must be relevant to the cause of the accident.

Children

As a matter of law there is no minimum age for a finding of contributory negligence to be made.

Instead the courts have adopted a variation of the objective test. It is important to remember that behaviour that will be deemed contributory negligence on the part of an adult may not be so regarded for a child.

A forensic difficulty facing Defendants in cases involving children is that the trial is likely to take place many years after the accident. It will be difficult in those circumstances to assess the knowledge etc. of the child at the time of the accident.

The court will consider all of the circumstances of the case, but have particular regard to the following matters:

• (a) The particular danger to which the child was exposed and the capacity of that particular child to understand the risk;
• (b) That child’s knowledge of the perils that the Defendant’s negligence had exposed him/ her to;
• (c) The degree of care that would be expected of a child of that age;
• (d) The age of that child;
• (e) The intellectual level of that child;
• (f) All the circumstances of the case.

But, the court will consider all of the factors. The road safety knowledge of one 9 year old child may be different to that of other 9 year olds.

In Toropdar v D (A minor) 2009 LAWTEL, 2nd October 11 a 10-year old child was run down by a car. The court held that the relative blameworthiness and causative effect of each party’s actions had to be considered. D’s actions had to be judged by the standards of a 10-year old boy. At that age he could reasonably be expected to take precautions for his own safety, but could not be assumed to have the road awareness of a teenager or adult. D was significantly to blame for the accident and his actions contributed to the accident. However, his culpability was reduced by his youth.

Likewise, a child Claimant may have a particular knowledge that others do not have [Yachuk v Oliver Bais [1949] AC 386].

Rescuers & Emergency Situations

In determining whether a rescuer or someone acting in an emergency situation has taken reasonable care the court will pay particular attention to factors such as the risk of danger and the level of urgency that was required.

The courts frequently refuse to make findings of contributory negligence when a Claimant had to act in the ‘agony of the moment’, even if the Claimant accepts that with hindsight he should have acted differently.

The test can be summarised as follows: if the Claimant acted reasonably in the context of the emergency situation or dilemma, his conduct will not be regarded as contributory negligence [Sayers v Harlow UDC [1958] 1 WLR 623].

Such an assessment will depend on all the circumstances of the case, the level of danger, the urgency and the likely results of not acting.

In cases of emergency services professionals the issue will be decided by factors including (a) the special demands placed on them by the nature of their job, (b) their knowledge and training and (c) the likely consequences of not acting [Griffin v Mersey Regional Ambulance [1998] PIQR P34].

Appealing A Trial Judge’s Assessment

The judge’s assessment of contributory negligence is a matter of discretion.

If the judge places his/ her assessment in an arguable range the Court of Appeal is unlikely to overturn it. The Court of Appeal is mindful of the fact that it was the trial judge who heard the witnesses give evidence.

If there is evidence that is capable of supporting the trial judge’s conclusion the Court of Appeal will be reluctant to interfere [King v Smith [1995] PIQRP48 at P54].

However, the Court of Appeal will interfere in the following instances:

• (a) If the judge’s decision is wrong [Jennings v Norman Collinson [1970] 1 All ER 1121];
• (b) If the trial judge failed to consider a material fact or based his/ her decision on an irrelevant matter;
• (c) If there is a wide difference of view between the trial judge and the Court of Appeal [NCB v England [1954] AC 403]; and
• (d) If the decision is wrong in principle [Liddell v Middleton [1996] PIQR P36].

Road Traffic Accidents

This section of the paper considers road traffic accidents involving the following issues:

• Cycle Helmets
• Pedestrians
• Children
• Passengers
• Vehicles

Cycle Helmets

Smith v Finch [2009] EWHC 53 (QB)

S had sustained serious head injuries when his bicycle collided with F’s motorcycle. S’s case was that F had ridden his motorcycle along the road at an excessive speed, failed to keep a proper look out and failed to see S, who was on the proper side of the road at all times. F claimed that S’s injuries had been sustained wholly or partly because he had not been wearing a helmet, which was said to amount to contributory negligence.

HELD: The High Court Judge rejected F’s evidence and held that he had been travelling at a speed well in excess of 30 mph. The collision occurred as F tried to overtake S. F was entirely to blame for the collision.

On the issue of contributory negligence: it did not matter that there was no legal compulsion for cyclists to wear safety helmets. There could be no doubt that the failure to wear a helmet might expose the cyclist to the risk of greater injury. Such a failure, like the failure of a car-user to wear a seatbelt, would not be sensible. Therefore, subject to causation, any injury sustained might be the cyclist’s own fault.

However, on the balance of probabilities, S had hit the ground at a speed greater than 12 mph so the wearing of a helmet would have made no difference to the injuries sustained. Moreover, the scalloped shape of most modern helmets would probably not have prevented S’s injuries, given the location of the impact on his head. F had adduced no medical evidence to support his case that S’s injuries would have been reduced or prevented by his wearing a helmet.

Phethean-Hubble (A child) v Coles [2011] EWHC Civ

P was 16 years old at the time of the accident and rode his bicycle off the pavement and onto the road, into the path of C’s car. P, who was not wearing a cycle helmet, suffered a serious head injury. C accepted that he had been driving up to 5mph above the speed limit.

The judge held that (a) C was familiar with the area, (b) by driving at 35mph he gave himself no opportunity to avoid the collision, (c) C ought to have driven 3-4 mph under the speed limit, in the circumstances, (d) however, P drove off the pavement and into the car’s path of travel and (e) P’s damages were reduced by one third.

The judge approved the decision in Smith v Finch and stated:

• Although there is no legal requirement to wear a cycle helmet the starting point is that a cyclist who fails to wear a helmet runs the risk of contributing to his injuries;
• The next issue is what effect the helmet, if worn, would have had on the injuries sustained. Each case must be considered on its facts. In P’s case there was more than one impact involving his head and the vehicle. Therefore, on the facts, wearing a helmet would have had minimal effect; and
• The court will then consider whether it is just and equitable to make a reduction for contributory negligence.

Reynolds v Strutt & Parker LLP [2011] EWHC 2263 (QB)

R attended an activities afternoon at a country park arranged by S for its employees. It was decided that the end of the event would include a cycling race. At the race, of the 12 cyclists involved, only one (not R) wore a helmet. R was involved in a collision and sustained a serious brain injury. Expert evidence indicated that if R had been wearing a helmet it was very unlikely that he would have sustained the injury.

HELD: R was aware that helmets were available, if only because he had seen one other rider wearing one. If those who failed to use helmets on quiet country roads were contributory negligent, then R should also be (Smith v Finch). Therefore S was liable and a finding of two-thirds contributory negligence was made.

Seatbelt

Hazlett v Robinson et al [2014] NIQB 17

H, who was 34, had been injured in a road traffic accident in 2009. Liability was admitted save for the question of whether H had been contributory negligent by not wearing a seat belt.

It was held that the Claimant’s evidence was less than candid and he had not been wearing a seat belt. Had he done so his injuries would have been much less severe. A 20 per cent deduction was therefore appropriate. The Claimant had lied about wearing a seat belt and the Defendants had to engage an expert witness to rebut his untruthful assertion. The Claimant would therefore be entitled to his costs, save that the Defendants would be entitled to offset the costs of their accident reconstruction expert.

Road Traffic Accidents Involving Pedestrians

This section of the paper deals with the issues that arise in road traffic accidents involving pedestrians. The paper is divided into the following sections:

• Specific case examples:
  1. Pedestrians stepping into the road.
  2. Pedestrians crossing a road from between parked vehicles.
  3. Pedestrians walking behind a reversing vehicle.
  4. Accidents at pedestrian crossings and other crossings.
  5. The drunken acts of pedestrians.
• Accidents involving child pedestrians.

Culpability Of A Pedestrian

In Eagle v Chambers [2003] All ER 411 it was held that it is rare for a pedestrian to be found more culpable than a driver, unless it could be shown that the pedestrian moved suddenly into the driver’s path.

In Eagle v Chambers the Claimant was walking unsteadily in the centre of a dual carriageway. She was emotional. The Defendant’s vehicle collided with her. There was no evidence that the Claimant had suddenly moved into the Defendant’s path of travel. Therefore, the finding of contributory negligence was 40%.

The decision in Eagles was recently followed by the Court of Appeal in Belka v Prosperini [2011] EWCA Civ. 623. In that case B and his friend were attempting to cross a dual carriageway. They walked into a central island that was in the carriageway and stopped. As P’s vehicle approached B (alone) stepped into the carriageway. The trial judge held that B took a deliberate risk of trying to cross the road in front of P’s vehicle. P’s evidence was that he saw B’s friend from about 30 metres away but did not see B until “the last moment”. The trial judge held that P ought to have seen B and his friend from a distance and then reduced his speed. The trial judge held B to be two thirds contributory negligent.

On appeal the Court of Appeal held that (a) P ought to have seen B from a distance and reduced his speed and (b) B took a deliberate risk of an accident by running across the road in front of a vehicle that had right of way. The Court of Appeal concluded that B suddenly moved into P’s path of travel and B was far more to blame than P for the accident. The trial judge’s finding of two thirds contributory negligence was upheld.

Therefore, the court will consider the actions and the Defendant and the Claimant. If the Defendant driver can be significantly criticised then the finding of contributory negligence will be reduced. The following cases are examples:

Wormald v Ahmed QBD; 26/11/2014

The Claimant pedestrian sought damages for negligence against the Defendant taxi driver.

It was held: (1) The evidence suggested that the Claimant had been stationary at the kerb and had then entered the road, increasing his speed so that he was striding and almost at a jog. The road was just outside the centre of Leeds and an area in which pedestrians were to be expected, close to a pub. The court accepted the Defendant’s account that he had to be aware of incidents outside the pub. However, taking everything into account, a reasonable driver would have monitored the road ahead to ensure that he had identified any hazards. The court’s essential findings were that: a reasonable driver would have checked his mirror and blind spot and also would have monitored the whole of the road ahead; even assuming that it was necessary to look away as D had described, the reasonable driver would have looked forward first; the reasonable driver would not have looked away for so long without also looking ahead. Primary liability was established. (2) A car driver was in charge of a potentially dangerous weapon and it was rare to assign more responsibility in contributory negligence to a pedestrian than a driver unless the pedestrian had suddenly moved in front of the car. In the instant case, the Claimant had not suddenly moved into the car’s path. However, it was clear that the Claimant had misjudged the situation. He had crossed when it had been unsafe to do so, and had walked quickly into the Defendant’s path. The court was unable to accept that the reduction for contributory negligence should be low. The appropriate reduction was 40 per cent.

Hickman v London Central Bus Company Ltd [2013] EWHC 1703 (QB)

The Claimant had been crossing Victoria Street in central London when he was struck by a bus driven by one of the Defendant’s employees. The collision occurred shortly after 07.00, when it was still dark, at a busy junction close to the bus terminus and railway station. The bus had been waiting at traffic lights in order to turn left into Victoria Street. The Claimant crossed the road, in a north to south direction, in front of the traffic lights instead of using the designated pedestrian crossing. He believed that the lights were on red, and started to walk across the road. When the bus started to move he broke into a run. He was struck by the nearside corner of the bus as it turned into the road.

It was held: (1) A failure to see something was not necessarily negligent: if a reasonably careful driver could reasonably not have seen the Claimant it could not be negligent for the driver not to have done so. However, that was not the situation in the instant case. The junction was very well lit. Prior to, and at, setting off, it would be reasonable for a driver to check that her nearside was clear so as to avoid motorcyclists and cyclists coming up the nearside. However, drivers also had to look to the front, to the road into which they were turning. The bus driver should have been scanning the front as she went, to satisfy herself that it was safe to enter Victoria Street. The presence of other pedestrians crossing the road whilst D was stationary at the lights demonstrated the need for her to be aware of the chance of pedestrians crossing Victoria Street at that point. (2) Had the driver kept a proper lookout she would have seen the Claimant crossing the road in sufficient time to slow down, change course or stop so as to avoid a collision. (3) The Claimant had not used a designated crossing and, whilst the place where he chose to cross was not unsafe per se, given the presence of buses waiting to move off from the lights a high degree of vigilance was required of him. He should have waited for the buses to move off or the lights to change again before crossing. There was contributory negligence. However, the bus driver’s continuing failure of lookout and the fact that the bus moved off when the Claimant was already crossing the road made her more culpable. The Claimant was 40 per cent contributory negligent.

Lightfoot v Go Ahead Northern [2011] EWHC 89

A bus that was driven by the Defendant’s driver was travelling at 40mph along a dark country lane. The speed limit was 50mph. The Claimant, who was very drunk, had walked into the carriageway in order to flag down the bus.

In the seconds before the accident the Defendant’s driver had taken his hand off the steering wheel to turn on the driver’s cab light and had looked at his timetable. He did not see the Claimant in the road until it was too late to avoid a collision.

The trial judge held that if a Claimant acts in a careless manner due to being drunk the careless acts could amount to contributory negligence. However, it is necessary to consider the Claimant’s act of walking into the carriageway rather than the fact that he was drunk when he did it.

The Claimant had walked diagonally into the road to flag down the bus. However, had the driver been looking at the road, rather than the timetable, he would have been able to avoid the collision.

The judge decided that this case was not one of those identified in Eagle v Chambers, in which a pedestrian is to be held more liable than the driver. The Claimant was held to be 40% contributory negligent.

Sedge v Prime [2011] LAWTEL, 31st January

The Claimant, a pedestrian, stepped from the pavement onto the road and was hit by the Defendant’s vehicle. The Defendant was driving at an excessive speed. The road was in a shopping street and had bollards on either side of it.

The trial judge held that (a) the Defendant should have been driving at 10mph at that part of the road, (b) he should have seen the Claimant from a distance and realised that, from the manner of his walking, there was a risk that he would try to cross the road and (c) he should have sounded his horn.

The judge accepted that the Claimant had walked into the road at an unsafe time and had failed to keep proper lookout.

The judge decided that the Claimant was 25% contributory negligent.

Specific Examples

Crossing Between Parked Vehicles

Where possible a pedestrian should not cross a road from between parked vehicles.

If, however, a pedestrian has to cross between parked vehicles, the Highway Code provides the following guidance:

“14. Parked Vehicles – If you have to cross between parked vehicles, use the outside edges of the vehicles as if they were the kerb. Stop there and make sure you can see all around and that the traffic can see you. Never cross the road in front of, or behind, any vehicle with its engine running, especially a large vehicle, as the driver may not be able to see you”.

Roda Sam v Atkins [2005] EWCA Civ 1452

The Claimant attempted to cross a busy four-lane carriageway from in front of a parked van. The Defendant was travelling at 20mph. It was dark.

On appeal it was held that the claim should be dismissed. The Claimant had stepped out into the Defendant’s path of travel. The Defendant had no opportunity to stop or otherwise avoid the collision. The Claimant had unexpectedly emerged into the road from behind the van.

Sahakian v McDonnell [2007] EWHC 3242

The Claimant, a pedestrian, tried to cross a road from behind a parked car. He hurried across the road. There were parked cars along the Defendant driver’s nearside and cars approaching her from the opposite direction The judge held that the Defendant was driving too fast for the road conditions. Her speed ought to have been 25mph. However, the judge also held that the Claimant’s actions were a significant cause of the accident, in that he hurried across the road from behind a parked car.

Liability was decided 50/50. Eagle v Chambers was considered.

Toropdar v D (A minor) 2009 LAWTEL, 2nd October 11

D, who was 10 years old at the time of the accident, was struck by T’s car in a residential area. D ran across the road from behind a parked bus and into the path of T’s car. T was driving below the speed limit and was decelerating at the time of the collision.

The court held that the relative blameworthiness and causative effect of each party’s acts had to be considered. D’s actions had to be judged by the standards of a 10 year old boy. At that age he could reasonably be expected to take precautions for his own safety, but could not be assumed to have the road awareness of a teenager or adult.

D was significantly to blame for the accident and his actions contributed to the accident. However, his culpability was reduced by his youth.

T had been travelling too fast for the road conditions and should have braked sooner. He should have been mindful of the presence of other children at the side of the road. A motor car is a potentially “lethal weapon” and a driver has a duty to take reasonable care.

In the circumstances the major share of the blame rested with T. A one third finding of contributory negligence was made.

No Opportunity For The Driver To Avoid A Collision

A driver must be alert to the risk of pedestrians, particularly children, running into the road. The Highway Code requires a driver to reduce the speed of his/ her vehicle on approach to children who are on the pavement or in residential areas.

When preparing cases on behalf of Defendants it is important to consider the following issues:

• (a) The speed of the Defendant on approach to the area where the Claimant was positioned;
• (b) Whether the Defendant kept an adequate lookout;
• (c) The use of a warning, where necessary;
• (d) Visibility and lighting conditions; and
• (e) The stopping distance and reaction times. Expert accident reconstruction evidence will often be required.

However, these types of cases are fact sensitive. The simple fact that a collision has occurred does not necessarily mean that the Defendant is liable. In some cases, the manner in which the Claimant attempted to cross the road will mean that the Defendant did not have an opportunity to avoid the collision.

No Liability On The Defendant

Maranowska v Richardson [2007] EWHC 1264

The Defendant was driving a bus that collided with the Claimant as she attempted to cross the road. The Defendant argued that the Claimant attempted to cross the road when the bus was very close to her. The judge held that as the Defendant was able to stop the bus some five metres after the impact site, the bus was travelling at about 10mph immediately before the collision. The judge also held that the Claimant was six metres from the front of the bus when she began to cross the road.

The claim was dismissed, as the Defendant (a) was driving at a reasonable speed for the circumstances, (b) was not negligent in failing to have noticed the Claimant earlier and (c) could not be criticised for failing to anticipate that the Claimant would step out into the road.

In most cases the court will expect a driver to remain vigilant and reduce his/ her speed on approach to pedestrians. However, there are some cases in which the failure to brake or see the Claimant will not result in a finding of negligence.

Barlow v Entwistle [2000] (Bingham & Berrymans)

The Claimant was larking about with his friends on the grass verge at the side of a road. He ran into the road, without reason or warning, and was hit by the Defendant’s vehicle, that was driving at 25mph. The Defendant did not see the Claimant prior to impact.

On appeal it was held that no driver could anticipate that the Claimant would, without reason or warning, run across a busy road. The claim was dismissed.

Smith v Hammond [2010] EWCA Civ 725

The Claimant cycled out of a driveway, across the pavement and, without looking, into the road. H, driving a lorry on the road, braked and swerved but hit S.

HELD ON APPEAL: The courts were entitled to expect all road users to exercise a degree of care commensurate with the dangers involved but the standard to be applied remained that of the reasonably prudent motorist, or in the instant case the reasonably prudent lorry driver. The court was not entitled to impose a higher standard amounting to a counsel of perfection. H had not been negligent in failing to sound his horn at the same time as he was engaged in extreme efforts to avoid a collision.

Reversing Vehicles

A pedestrian should not walk behind or across the path of a vehicle that is reversing or showing its reversing lights.

Likewise, a vehicle that is sounding a warning for no apparent reason may be doing so in preparation for a reversing manoeuvre.

Green v Bannister [2003] EWCA Civ. 1819; [2003] All ER (D) 279

D reversed her vehicle over C, who was lying in a drunken stupor in the roadway. While reversing, D had been looking over her right shoulder. D was found liable, with C’s contributory negligence assessed at 60%.

ON APPEAL: D should have checked her near side mirror. Had she done so she probably would have seen C. Reversing in a cul-de-sac called for particular attention. Appeal dismissed. Finding of contributory negligence upheld.

Accidents At Zebra Crossings & Other Crossings

A pedestrian is required to give plenty of time to allow a driver to stop at a crossing. Likewise, the mere fact that there is a crossing in the road does not mean that a pedestrian should step into the road.

Rose v South East London & Kent Bus Co Ltd [2004] EWHC 1106 (QB)

C was attempting to cross a road that was divided by a traffic island, which was in turn surrounded by a railing. C was walking along this strip toward a pelican crossing some 30m away. A bus operated by D was stationary waiting to pass through the crossing and the driver saw C walking along the strip. C slipped just before the crossing and was struck by the bus, which had just moved forward.

HELD: The driver had failed to take care – the onus was on him to check that C was out of an area of risk before moving forward. C was found 50% at fault for placing herself in a position of risk.

Judge (by her mother and litigation friend Gwen Judge) v Brown (26 March 2001, unreported)

C was on her way home from school when she was struck by a vehicle driven by D as she used a zebra crossing. C claimed D had failed to keep a proper lookout.

HELD: A reasonably careful driver should have been prepared to slow down or stop to let children cross the road. However, a 12 year old girl ought to have appreciated that she was stepping out when D’s vehicle was close. Liability split 50/50.

Turner v Arriva North East Ltd [2006] EWCA Civ 410; [2006] All ER (D) 369

The deceased was hit by a bus and killed while attempting to cross a road when pedestrian lights were red against her. The bus was being driven within the speed limit. At first instance, the judge found for D. C appealed.

ON APPEAL: The judge’s decision was justified. There was no reason why the bus driver could not proceed and he could not have seen the pedestrian until it was too late.

Goddard & Walker v Greenwood [2002] EWCA Civ 1590; [2002] All ER 285

The Claimants were jogging along one side of a three-lane carriageway. D was approaching traffic lights as they changed from red to green. D therefore continued, but struck the Claimants as they passed in front of him. D was initially found not liable on the basis that there was no obligation to stop or slow down.

ON APPEAL: Although the lights were green, this did not mean D had discharged his duty of care. There was a lorry to D’s left. As this had remained stationary, D should have been alerted to the fact that pedestrians might have been crossing and should have acted accordingly. D was held to be liable with 80% contributory negligence on the part of the Claimants.

Lunt v Khelifa [2002] EWCA Civ 801; [2002] All ER (D) 352

D was driving within the speed limit when he knocked down C as he was crossing the road at a junction normally controlled by traffic signals. Neither the main traffic lights nor the pedestrian lights were working. C was three-and-a-half times over the drink-driving limit.

ON APPEAL: Apportionment of liability 2/3 to 1/3 in favour of C upheld. D had breached his duty of care in failing to brake and failing to see C in an area near an underground station where he should have known there were likely to be pedestrians.

Drunken Acts Of Pedestrians

Stewart v Glaze [2009] EWHC 704

The Claimant, who had been drinking with friends, suddenly stepped into the road and into the path of the Defendant’s vehicle. He was seriously injured.

It was held that the Claimant had suddenly got onto his feet in mid-conversation with a friend and then walked towards the kerb without warning. The Claimant was at a bus stop. The court held that there was nothing that should reasonably have alerted the Defendant to the risk of the Claimant stepping into the road.

Therefore, even though the Defendant did not brake on approach to the Claimant, he should not be criticised for failing to do so. The claim was dismissed.

North v TNT Express UK Limited [2001]

The Claimant, who had been drinking, climbed onto the front bumper of the Defendant’s lorry and asked its driver to drive him home. The driver told the Claimant to get off the lorry, but he did not do so and then began to vigorously pull the windscreen wiper. When the Claimant fell off the bumper the vehicle collided with him.

ON APPEAL it was held that the judge had applied too high a standard of care. The driver had been presented with a difficult dilemma and in the circumstances it was very difficult to know what to do. In the circumstances, including the fact that the Claimant’s friends, who had also been drinking, were near the vehicle, the driver had acted reasonably. The Court of Appeal held that the Defendant was not liable for the Claimant’s stupid acts.

Parkinson v Chief Constable of Dyfed Powys Police [2004] EWCA Civ 802

C was under the influence of alcohol and stepped out into the road from near a parked taxi and into the path of a police car. The police car was travelling at 40 mph when it hit C. The accident happened late at night in a built up area.

HELD: The driver should have anticipated that there might be pedestrians in C’s condition and should have adjusted his speed accordingly. Liability 35/65 in C’s favour. The speed of the vehicle was an importance factor.

Accidents Involving Cildren

James v Fairley [2002] EWCA Civ 162; [2002] All ER (D) 298; [2002] RTR 19

C, aged 8, was struck by D’s car as he crossed the second of two lanes of an A-road. D was found not negligent.

ON APPEAL: When C was on the pavement before crossing the road, his behaviour would not have alerted a prudent driver to the possibility of anything unusual or dangerous occurring. The judge had been entitled to find that D would not have seen C before colliding with him even though he had crossed one of the two lanes.

Miller v C&G Coach Services Ltd [2002] EWHC 1361 (QB); [2002] AE 120

C was a 15 year old schoolgirl who had alighted from a school bus and passed behind it to cross the road when she was hit by D’s coach. C argued that D had failed to keep a proper lookout, drove too fast and failed to slow down.

HELD: The driver did not see C before the moment of impact. His speed was appropriate and he had kept a proper lookout. C had stepped out from behind the bus into the path of the coach, which she had not seen previously. It could not be proved that the coach driver had driven negligently.

Palmer v Lawley & Another [2003] CLY 2976

C had been driving down a suburban road when D1, driving in the opposite direction, swerved to avoid a two-year-old child who had escaped from a house when her eight-year-old sister failed to properly secure a latch. C alleged that the child’s mother had been negligent.

HELD: D1 (Lawley) had not been driving negligently in swerving to avoid the child. If the child’s mother were to be found negligent it would place too high a burden on parents. Nobody was liable.

Goundry v Hepworth [2005] EWCA Civ 1738; [2005] All ER (D) 405 (Nov)

C, aged 4, attempted to cross a road with a number of adults. C was in the middle of the road when two cars approached. The first went passed but, as the second drew level, C ran out and was struck. At trial, the judge held D liable as she should have stopped or slowed down to allow C to cross.

ON APPEAL: D was not liable. If D was obliged to stop or slow down, so was the car in front.

Wells v Trinder [2002] EWCA Civ. 1030; [2002] All ER (D) 122

C was hit by D’s vehicle while crossing the road. C’s mother had seen the approaching vehicle and had shouted a warning. The judge at first instance found for C. D appealed.

ON APPEAL: The judge was entitled to find negligence on D’s part due to his speed and his failure to properly illuminate his lights. However, as C’s mother had seen the approaching vehicle, there was no reason why C herself should not have seen it, so she was held to be 25% liable for her injuries.

Honnor v Lewis [2005] EWHC 747 (QB); [2005] All ER (D) 374 (Apr)

C, who was almost 12 years old, was attempting to cross a road outside his school when he was struck by D’s vehicle. D argued that he did not see C until immediately prior to the collision and that he was driving within the speed limit. Evidence from a witness positioned directly behind D suggested that C had not seen D’s vehicle.

HELD: D was negligent for not slowing down, failing to notice the school warning sign, failing to sound his horn and failing to notice C. As C stepped out without noticing D’s vehicle he was found 20% responsible for his own injuries.

Ehrari v Curry [2006] EWHC 1319 (QB); [2006] All ER (D) 61 (Jun)

A 13 year old Claimant was hit by D’s truck when she walked out from behind a parked Volvo that had furniture on its roof. The truck’s passenger saw C just before impact but the driver did not.

HELD: As the passenger saw C, D’s attention must have been elsewhere. D’s attention did not always have to be fixed in front, but had it been he might have sounded his horn, which might have avoided the accident. Liability was apportioned 70/30 in D’s favour as the primary cause of the accident was C walking into the road.

Puffett (a minor by his litigation friend Joyce Ann Puffett) v Hayfield [2005] EWCA Civ. 1760; [2005] All ER (D) 256

The 6 year old Claimant was seriously injured when he emerged from between two parked cars and was struck by D’s vehicle on a residential road where children regularly played. Street lights were on, the road was dry and weather conditions were good. D was found liable and appealed.

ON APPEAL: D was liable – her speed was excessive in the circumstances.

M (a child) v Rollinson [2003] 2 QR 14

C, aged 5, was taken by her father to buy an ice cream from an ice cream van. While C’s father paid, C went to the front of the van. She ran into the side of D’s vehicle, which was being driven at no more than 15mph.

HELD: While it was generally not negligent to pass a vehicle at 15mph, consideration had to be given to the fact that it was an ice cream van. 15mph was not slow enough to avoid the impact. D had not been sufficiently careful and was liable.

Howell-Williams v Richards Brothers & Another [2008] EWCA Civ 1108

C, aged 5, was being taken in D1’s minibus to his child minder. The minibus stopped on the opposite side of the road to the child minder and the driver allowed C to alight. C ran across the road and was struck by D2. At trial, D1 (minibus driver) and D2 were held liable on a basis of 2/3 to 1/3 respectively. D2 appealed on the basis that no liability should attached. D1 cross-appealed contending that an apportionment of 50/50 was more appropriate.

ON APPEAL: Findings against D1 were correct – the driver had failed to keep the children on the bus despite seeing D2 approach. Depositing unsupervised children on the edge of the road created a foreseeable risk of accident. Apportionment was also upheld against D2 as she failed to notice that the minibus was a school bus and reduce her speed accordingly. Appeal and cross appeal dismissed.

Richardson (By Maria Allen his mother and litigation friend) v Butcher [2010] EWHC 214 (QB)

C, aged 8, ran across the road and was struck by D’s vehicle. D denied liability on the basis that she had not seen C until he was immediately in front of her and therefore had insufficient time to stop.

HELD: D was at fault for failing to keep a proper lookout. She was focussed on a vehicle in front that was making a left turn, after which she accelerated and saw C in front of her. As D had a 50m uninterrupted view of the road ahead she should have seen C before she did. Also, as she was able to accelerate, her focus should have returned to the road, which would have alerted her to C’s presence.

Cases Involving Passengers

Gleeson v Court [2007] EWHC 2397

During an evening out, G had been drinking with friends. Six of them, including G, got into a hatchback car to drive home. As they could not all fit on the seats G volunteered to travel in the boot. The driver drove too quickly and lost control of the car, it hit a safety barrier and G was thrown out of the back. The driver pleaded guilty to dangerous driving and driving with excess alcohol, but in G’s claim submitted that G had been contributory negligent by electing to travel in the car when he knew or ought to have known that the driver was adversely affected by drink, and by travelling in the boot.

The court emphasised that the fault of the driver should not be overlooked. He drove when adversely affected by drink, he drove too fast, he failed to control his vehicle and he permitted G to ride in the boot. The first three factors were the cause of the accident and the predominant cause of G’s injury.

Travelling in the boot created the mechanism for the injury for which both the driver and G bore some responsibility. Those factors had to be balanced against G’s alleged fault in order to determine the just and equitable division of responsibility for G’s damage.

On the evidence, G knew that the driver had drunk far too much alcohol to be driving. Therefore there was no convincing reason why the figure of 20 per cent should not be adopted if that factor stood alone: Owens v Brimmell (1977) QB 859.

Travelling in the boot could be distinguished from failing to wear a seatbelt in that there was no available restraint in the boot. However, the conduct was otherwise more foolhardy. Those factors balanced themselves out, particularly when the driver bore some responsibility for permitting G to travel in the boot. Bearing in mind the driver’s fault, there was no reason to depart from the conventional figure of 25 per cent if that factor stood alone.

It was not permissible to aggregate the two figures. Both elements flowed from G’s impaired decision-making and there was therefore an element of double counting. More importantly, a 45 per cent reduction would make little distinction between the parties’ relative blameworthiness. Considering what was just and equitable and having regard to G’s responsibility for the damage the appropriate reduction was therefore 30 per cent.

Cross v Smith [1999] LAWTEL

The Claimant allowed himself to be carried in the back of a transit van that did not have any seats fitted. The first instance judge held that the Claimant was not contributory negligent.

The facts were that the Claimant met five friends at a pub. He arrived as they were leaving and so he joined them. He got into the back of a van that had no seats or seat-belts. In the course of a journey of less than two miles, the van went out of control and hit a wall. The claimant suffered serious head injuries.

The Court of Appeal held that in a personal injury action in which contributory negligence is an issue the court has to consider (a) was the Claimant at fault and (b) if so, was his fault a cause of his injury? The first instance judge had distinguished the case from that of Froom v Butcher on the basis that the Claimant had not deliberately chosen not to use the seat belts. There were, in fact, no seats or seatbelts available. The judge had considered the Claimant’s reasons for going in the van: it was a short journey in a quiet area, it was his first time in the van, it would have been difficult for the Claimant if he had not gone in the van and he had been persuaded to go with the Defendant.

The judge had concluded that there may be some circumstances where it would be contributory negligence for someone to ride in the back of a van without a seat belt, but this was not one of them.

The Court of Appeal did not interfere with the first instance judge’s decision that the Claimant was not contributory negligent.

Collisions Between Vehicles

Buchan v Whiting [2008] EWHC 2951

The Claimant, a motorcyclist, was driving along a main road and overtaking slow moving cars. The Defendant was turning right out of a side road onto the main road.

It was held that the Claimant was riding his motorcycle at about 60mph and had his headlights on. He should have been visible to the Defendant from about 200 metres. The onus was on the Defendant to ensure that it was safe to begin and then continue his turning manoeuvre onto the main road.

The court decided that the Claimant’s excessive speed on approach to the side junction was more than mere carelessness. Contributory negligence was assessed at 50%.

Woodham v Turner [2011] EWHC 1588

The Defendant’s employee drove a coach from a side road and turned right onto the main road. He drove through a gap in stationary vehicles that were on the main road. The Claimant was driving a motorbike along the main road and overtaking the slow moving vehicles. A collision occurred.

Parker J held:

• (a) Drivers should be aware that emerging blindly from a side road even at low speed posed a significant risk to motorcyclists on the main road;
• (b) The traffic to the Defendant’s right side resulted in him being unable to see oncoming vehicles;
• (c) The Defendant could have waited until his view to his right was better;
• (d) However, the Claimant ought to have been aware that there was stationary traffic on the main road and he was approaching a junction. His speed of 20mph when overtaking the vehicles was, for the traffic conditions, excessive; and
• (e) Contributory negligence was assessed at 30%.

Collisions With A Stationary Object

Tompkins v Royal Mail Group PLC [2005] EWHC 1902

The Claimant drove his vehicle into a stationary trailer that was owned by the Defendant. The Defendant’s driver had unhitched his trailer from his vehicle and left it by the kerb. The trailer was unlit and left on double yellow lines. The accident occurred at 4.00am. The Claimant drove his vehicle into the trailer, without apparently seeing it or taking any avoiding action.

The court held that the risk of a driver colliding with the trailer was small, having regard to the fact that it was positioned close to a street light that was lit. However, that small risk could have been avoided or reduced even further by the Defendant.

In light of the causative effect of the actions of each party and the just and equitable test, the Claimant recovered 35% of his damages.

Michael H v Thames Valley [2010] EWCA Civ 5

In the Court of Appeal considered an unusual case. The Claimant was riding a motorcycle at excessive speed and the police gave chase. The Claimant refused to stop his vehicle and drove all the way home. When he was outside his house the police driver drove the police vehicle very close to the Claimant, in case he attempted to escape.

The precise circumstances were unclear, but as the Claimant stepped off his motorbike his leg came into contact with the stationary police car and he fell. The Claimant alleged that the police driver had stopped his vehicle too close to him.

The Court of Appeal held that the Claimant had driven foolishly in trying to evade the police rather than stopping. He was 60% contributory negligent. The Court of Appeal did, however, uphold the trial judge’s finding that the police car was too close to the motorbike.

Greenwood v Cummings [2008] LAWTEL

The Claimant, a pedestrian was crossing a slip road and using a crossing that was designated for pedestrian use. The Defendant maintained that he had not seen the Claimant until a split second before the collision, due to being blinded by the sun. An eye witness gave evidence that the Claimant had not stopped when she reached the kerb but had stepped into the road without looking. The Claimant gave evidence that she stepped into the road due to the Defendant not being visible to her at that time.

Held: The Defendant was held negligent for failing to keep a proper lookout and failing to drive in a manner that was suitable for the conditions (i.e. the sun).

The judge also decided that the Claimant was contributory negligent as she had (a) not stopped at the kerb and (b) not looked properly before she stepped into the road. However, on the evidence, it could not be said that the Claimant had given the Defendant no opportunity to avoid a collision with her. Each should have seen the other much earlier than they did. Liability was apportioned as two thirds against the Defendant and one third against the Claimant.

Stoddart v Perucca [2011] EWCA Civ 290

In the Court of Appeal considered a case in which P, a car driver, collided with a horse that was being ridden by S. S rode a horse down a bridleway that ran perpendicular to a road. P saw one horse and rider cross the road ahead of him and then increased his speed. S rode her horse along the bridleway, onto the road and attempted to cross it at a trot. A collision occurred.

At trial the judge held that S had failed to properly look before riding the horse onto the road. However, the judge also held that P had made an error of judgment by not slowing down after he saw the first horse, to guard against the possibility of a second horse and rider crossing the road. The judge held that P was more culpable under the head of “causative effect” and S was more culpable under the heading of blameworthiness. A 50/50 finding was made.

On appeal it was held:

• The judge started his considerations with a realistic appraisal of blameworthiness;
• The judge was bound by law to adjust his considerations to take account of the fact that P was driving a car;
• The judge was entitled to conclude that although P was not driving recklessly he had made a significant error of judgement;
• The finding of 50/50 was upheld.

Workplace Accidents

In Goodchild v Oregon Laboratories Limited [2004] EWHC 2341 Forbes J held that an employer is unable to escape a finding of liability in a workplace accident claim unless it can prove that:

• (a) Its breach of duty was co-extensive with the Claimant’s breach of duty; and
• (b) That it had done all that could be reasonably be expected to ensure compliance with the regulations by the employee.

Not All Errors Will Amount To Contributory Negligence

The Claimant has a duty to take reasonable care for his/ her own safety. Therefore, the Claimant’s act or omission must be considered in that context.

However, there is authority that the courts should take a common sense approach. Momentary lapses of concentration or understandable errors, which would affect a prudent employee, will rarely be regarded as contributory negligence [Donovan v Cammell Laird [1949] 2 All ER 82].

The Court of Appeal has for some time emphasised that the workplace regulations were introduced in order to prevent accidents occurring. The regulations were also intended to protect employees from their own inattention.

There is a line of cases that emphasise this point [Sherlock v Chester City Council [2004] EWCA Civ. 201; Johns v Simms [1983] 1 All ER 127, at 130].

Unusual For High Findings Of Contributory Negligence

In Toole v Bolton MBC [2002] EWCA Civ. 588 the local authority instructed the Claimant to wear heavy-duty gloves when cleaning the loos at a public building. Mrs. Toole did not wear the gloves but wore rubber gloves. She suffered a needle prick injury from a hypodermic needle. The trial judge held that, on the evidence, had the heavy duty gloves been worn they would not have prevented the injury.

The Court of Appeal held that the heavy duty gloves were inadequate, as they would not have prevented the needle prick injury. It was held that the Claimant should not be regarded as contributory negligent by failing to take action (wear the gloves) that were themselves a breach of duty by the Defendant. The Court of Appeal also held that it is unusual for there to be marked findings of contributory negligence in cases involving workplace accidents.

In Sowmez v Kebaberry Wholesale Limited [2008] EWHC 3366 an employee was cleaning a mixing machine, when his arm became caught in a moving part and it was amputated at his shoulder. The Defendant had told the Claimant to clean the machine when it was turned off. However, the Claimant tried to clean it when it was moving slowly. However, after a few minutes the moving part speeded up.

The Defendant admitted primary liability on the basis that it failed to take adequate measures to prevent access to the moving part.

The judge held that a finding of contributory negligence should not be made in circumstances where the fundamental cause of the accident was the Defendant’s breach of duty and the Claimant’s error was due to a momentary lapse of concentration.

However, the Claimant had been instructed to clean the machine when it was turned off and he was aware that the speed of the moving piece could increase. A finding of 20% contributory negligence was made.

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