Blind spot

In a recent case a driver who failed to see a pedestrian wandering aimlessly in the middle of the road was held to be more responsible for the terrible accident that resulted than the pedestrian. Giving judgement, the Court of Appeal said: ‘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.’

The case represents a significant development in the law, that has traditionally viewed fault as being the basis for apportioning responsibility for a pedestrian’s damages resulting from an accident. In 1949, Lord Denning formulated a two-part test for road traffic accidents: ‘What faults were there which caused the damage? What are the proportions in which the damages should be apportioned having regard to the respective responsibilities of those in fault?’

In Eagle v Garth Maynard Chambers (1) the claimant pedestrian was seriously injured when struck by a car driven by the defendant. The accident happened at 11.30pm as the claimant was walking without good reason in the offside lane of a dual carriageway and the driver failed to see her. The claimant, then 17 years old, had already been seen upset and emotional, walking backwards in the middle of the dual carriageway by a number of witnesses. Two of them had been so concerned for the claimant’s safety that at different times they tried unsuccessfully to persuade her to get off the road. The claimant did not heed their warnings and told one of them to ‘fuck off’.

The trial judge found the driver to have been negligent but reduced the claimant’s damages by 60 per cent on account of her contributory negligence. On the claimant’s appeal the Court of Appeal reduced the finding of contributory negligence to 40 per cent and held that the trial judge ‘was plainly wrong to hold the claimant more responsible than the defendant’ for her injuries.

By applying the first part of Lord Denning’s test to the Eagle case, the Court of Appeal essentially found that there were two faults that caused the damage. First, the fact that the claimant had for some time ‘put herself needlessly at risk by walking along the middle and then the offside lane of the carriageway without keeping a proper lookout for vehicles coming from behind’ despite receiving ‘at least two warnings from sensible people who had made some effort to persuade her to stop’.

Secondly, the fact that the driver did not keep a proper lookout while ‘driving needlessly in the offside lane or straddling the white line…at or a little above the maximum permitted speed on a road he knew, the sort of road where particular care should be taken to look out for and avoid pedestrians’, knowing that ‘he had had enough to drink to affect his driving abilities’ (although he was under the limit).

Had the Court of Appeal then focused simply on the actual fault of the parties that lay behind these two causes, as required by the second part of Lord Denning’s test, it would surely have found the claimant to have been more blameworthy than the driver. She was at fault for: choosing to put herself in the highway, failing to look for vehicles coming from behind, doing this for some time, and ignoring at least two warnings from concerned drivers. Against these factors the driver’s fault was that ‘for whatever reason, he failed to see the claimant until the very last moment and took no action at all to avoid her’.

But the Court of Appeal was able to find the driver more blameworthy than the claimant because it developed the second part of Lord Denning’s test into an issue about the ‘destructive disparity’ between car driver and pedestrian. Lady Justice Hale stated that ‘a car can do so much more damage to a person than a person can usually do to a car’.

It is of course true that a car can be more destructive than a pedestrian, but negligence law should be concerned with what is rather than what can be. What may make the car driver liable, or more responsible for damage than a pedestrian, is not the fact that he or she is driving a machine at speed – but the fact that he or she has done so with fault, such as driving too fast or driving without proper care and attention. And when apportioning responsibility between a claimant and defendant the court’s focus should be solely on what the respective parties actually did that can be said to have been faulty.

The ‘destructive disparity’ between driver and pedestrian should be irrelevant to an assessment of contributory negligence. By making it relevant the Court of Appeal was able to find a pedestrian less responsible than a driver for her terrible injuries, even though she acted in a knowingly irresponsible and dangerous way over a period of time. This is unfair to motorists and damaging to a society that ought to expect the same degree of responsible behaviour from all of its citizens.

Jon Holbrook is a barrister. Email jon.holbrook@btinternet.com

Read on:

‘Duties of care’ to the careless and criminal, by Jon Holbrook

The trouble with Making Amends, by Jon Holbrook

(1) [2003] EWCA Civ 1107