Pedestrian found wholly to blame for running into the path of oncoming motorcycle

The Court of Appeal in Darren Scott -v- Nicholas Joseph Gavigan [2016] EWCA Civ 544 upheld a first instance decision that a drunken pedestrian who had run into the path of a moped had been wholly responsible for the accident.

The claim involved an accident which occurred in July 2008. Though it was dusk, visibility was good. The Claimant was walking along the pavement in the opposite direction to that in which the Defendant was travelling, on a 125cc motorcycle.

The road was a straight road with a speed limit of 30 mph, with a mixture of residential and commercial buildings along each side. There were parked cars on the side of the road to the Defendant’s nearside, but no parked vehicles where the Claimant was walking.

The Defendant was travelling at close to 30 mph. The Claimant attempted to run across the road when the Defendant was approximately 10 metres from him. The Defendant tried to swerve and brake but was unable to avoid the collision. The collision occurred approximately 10 metres from an informal pedestrian crossing (marked with bollards, and featuring a central island and speed bumps).

The Defendant accepted that he had not braked on the approach to the pedestrian crossing. He did, however, brake when the pedestrian attempted to cross. The trial judge accepted that, on the balance of probabilities, the accident would not have occurred.

The trial judge concluded that the Claimant was entirely to blame for the accident. Although he found that the Defendant should have braked earlier on the approach to the pedestrian crossing, and should have been travelling at no more than 20 mph, the Claimant’s actions were not reasonably foreseeable. The trial judge accepted that the Claimant’s own reckless behaviour was the sole and effective cause of the accident, and constituted a novus actus interveniens.

The Court of Appeal upheld the first instance decision, but the reasoning provided will be of interest to practitioners dealing with road traffic accidents, and accidents involving pedestrians in particular.

Clarke LJ, delivering the lead judgment, accepted that the Claimant’s actions were entirely unforeseeable by the Defendant.  The Defendant had seen the Claimant pass the crossing point (which would have been the natural place to cross) and continue walking straight ahead along the pavement. He could not have foreseen that the Claimant would have attempted to run across the road when the Defendant’s motorcycle was only 10 metres away.

Clarke LJ made the helpful comment that: ‘In one sense any sort of foolishness is foreseeable. As is well known, some people do silly or absurd things; or deliberately take risks. The question is, however, whether what happened was the sort of thing that, in the applicable circumstances, this defendant, acting reasonably, ought to have foreseen, such that the claimant ought to have been in his contemplation as someone likely to be affected by any failure of his to brake sooner.

In the circumstances, therefore, ‘it was not incumbent on the defendant to take steps to avert a risk of which he neither was nor should have been aware’.

As the original decision of the trial judge was upheld on this basis, the Court of Appeal did not go on to deal with the remaining issues at length, however a number of other comments of interest were raised.

Firstly, the Court of Appeal disagreed with the comments of the trial judge that the Defendant had been negligent in driving at 30 mph. Neither the narrowness of the road nor the light conditions were such to make the Defendant’s speed inappropriate. The Court of Appeal also indicated that, as there were no vehicles up ahead and it was not likely that anybody was intending to use the pedestrian crossing (the Claimant having passed it), he was not under an obligation to reduce his speed on the approach to the crossing.

The Court of Appeal also cast doubt on the trial judge’s comments that the Claimant’s actions could constitute a novus actus. Clarke LJ commented:

In the present context it would seem to me to require pretty exceptional circumstances to deny a claimant who has surmounted the hurdles of foreseeability, negligence and causation any remedy at all. Claimants who (for whatever reason) run out into the road without thinking are, sadly, not infrequent. Such conduct is usually very careless and may well be properly characterised as reckless. Defendants who collide with such claimants may well not be held to be negligent or, if they are, the claimant may be found to be contributorily negligent to a high degree. Since, however, the reason for imposing any liability on the defendant is because, in the circumstances, he should have foreseen the risk which materialised and, for that reason, owed a duty to take care not to injure even the foolish, I find it difficult to see why he should be absolved of all liability and the claimant denied any relief save in extreme circumstances. These may arise if, for instance, a group of youths were engaging in goading each other to run as close to oncoming traffic as was possible.

The Court of Appeal also referred to a number of cases in which the degree of contributory negligence applied to claimants who were injured when attempting to run across a road, including Belka -v- Prosperini [2011] EWCA Civ 623 (claimant ran across the road into the path of an oncoming taxi: 2/3rd contributory negligence); Stewart -v- Glaze [2009] EWHC 704 (claimant rans out into road without warning – he failed to recover but in the alternative contributory negligence found to be 75%); Parmasivan -v- Wicks [2013] EWCA Civ 262 (a ‘very careless’ 13 year old claimant ran into road on the offside of the claimant's car – contributory negligence awarded at 75%).

This case is a helpful reminder of the importance of the issue of foreseeability in establishing negligence. Whilst drivers are expected to anticipate the mistakes or foolishness of other road users, the Court of Appeal’s comments confirm that drivers must only take steps to avoid risks which are reasonably foreseeable.

Such arguments will be particularly important in pedestrian cases in which, following the trend of case law subsequent to the decision in Eagle -v- Chambers [2003] EWCA Civ 1107, courts have tended to seek to impose a much greater degree of culpability upon drivers of motor vehicles than upon claimant pedestrians. Notwithstanding this, it remains incumbent on claimants to show that risk was foreseeable.

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