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Pedestrians: contributory negligence and causative potency

Adams v Gibson
High Court
26 October 2016

A finding of contributory negligence of one third has been made against a brain injured pedestrian who failed to use a nearby pedestrian crossing. The defendant had been negligent in failing to keep an eye on the claimant and to anticipate his stepping in to the road. However, the claimant should not have attempted to cross without using the pedestrian crossing and should have checked for traffic approaching from his right before stepping out. Caroline Hickerton reviews the judgment in the recent High Court decision in Adams v Gibson (2016).

Facts

The accident occurred shortly before 11pm on 17 October 2011. The defendant was driving through a built up residential area in Feltham, London. The road was single carriageway with a 30mph speed limit and several sets of speed bumps. The road featured a humped pedestrian crossing with a set of railings on both sides of the road guiding pedestrians towards the crossing.

Although there were factual disputes in several areas, HHJ Freedman made the following relevant findings of fact:

  • the immediate accident location was adequately lit;

  • the defendant was not travelling at excessive speed;

  • there was no impediment to the defendant’s vision;

  • the defendant had seen the claimant, approximately five seconds prior to the collision, standing on the kerb before the start of the railings to the south of the pedestrian crossing;

  • the claimant then sought to cross the road, ahead of the pedestrian crossing, at something like a 45 degree angle;

  • the claimant did not check for traffic approaching from his right before stepping out;

  • the claimant crossed the road from the defendant’s nearside and was struck by the nearside of the defendant’s vehicle which was travelling north;

  • the collision occurred just before (and south of) the pedestrian crossing.

Findings

HHJ Freedman apportioned liability on a two thirds/one third basis in favour of the claimant.

He found that five seconds was sufficient time for the defendant  to have stopped the car or to have slowed down (which would have reduced the severity of injury) and that the defendant should have foreseen that the claimant, stood on the kerb as he was, might step in to the road. The defendant offered no explanation of why he had not kept his eye on the claimant after he first saw him and his evidence was that he had not seen him again until the moment of the collision. The defendant knew that pedestrians might be in the vicinity and had failed to exercise the care of a reasonably prudent motorist.

However, HHJ Freedman also found that the claimant was at fault in “two material respects” as follows:

1) I am satisfied that he did not look to his right before stepping out in to the road…Had he looked to his right then he would have stayed on the pavement to let the defendant’s vehicle pass. 2) He chose not to use the pedestrian crossing, he should have done.

The claimant having consumed alcohol was found to be an explanation for his actions but was not in itself blameworthy. 

Comment

Adams does not depart from the general theme that greater responsibility is attributed to the driver than the pedestrian in cases of 'pedestrian v car'. S 1(1) of the Law Reform (Contributory Negligence) Act 1945 refers to responsibility for the 'damage' and not the accident. The case law has developed to identify two elements when deciding apportionment, the causative potency of what each party did and their blameworthiness. Driving a car is, as a general rule, more causatively potent of damage than the typical actions of a pedestrian and it is a rare case where a pedestrian will be considered more blameworthy than a driver. Hale LJ in the Court of Appeal decision in Eagle v Chambers (2003) is often quoted on this issue:

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.

Although rare, examples can be found in cases such as Belka v Prosperini (2011) CA in which the Court of Appeal upheld a decision that a pedestrian was two thirds to blame, and Stewart v Glaze (2009) QBD in which the pedestrian's claim was unsuccessful.

On the question of using a pedestrian crossing, perhaps surprisingly, HHJ Freedman did not cite the Court of Appeal decisions in Snow v Giddins (1969) or Tremayne v Hill (1986).  His reasoning, in identifying the non-use of the pedestrian crossing as blameworthy in itself, marks a potential departure from the reasoning in Snow and Tremayne.  In Snow the court held that a claimant who failed to use an available pedestrian crossing took on a higher standard of care when crossing the road but was not negligent simply because they did not use the crossing.  In Tremayne the court affirmed that a pedestrian is not obliged to use an available pedestrian crossing and may cross the road at any point provided reasonable care is taken.

Adams reminds us that the apportionment of liability in any given case will be heavily fact specific and dependent on the presiding judge’s view of what is just and equitable. HHJ Freedman’s view that non-use of a pedestrian crossing was of itself blameworthy serves to demonstrate that different views will exist in the judiciary on how blameworthiness, and therefore apportionment, should be approached. Differing assessments will not be interfered with by an appellate court unless they go beyond the limits of reasonable disagreement.

The case therefore reminds us that individual judges are likely to assess contributory negligence differently on the same facts and that any consideration of contributory negligence, by both sides, should rightly acknowledge that uncertainty. 

Contact

For further information please contact Caroline Hickerton, Senior Solicitor on 0161 603 5234 or at Caroline.Hickerton@dwf.law

By Caroline Hickerton

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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