Court of Appeal considers foreseeability in pedestrian road traffic accident case
Scott v Gavigan
Court of Appeal
8 June 2016
Jamie Azim, Senior Solicitor in DWF's London office and Niall MacLean of 12 King’s Bench Walk acted for the defendant and his motor insurers, Markerstudy, in a case that recently came before the Court of Appeal arising out of a road traffic accident involving a pedestrian and a motorcyclist. The unanimous judgment, upholding the first instance decision, provides a useful reminder of the importance of foreseeability in road traffic accidents, particularly those involving pedestrians.
The road traffic accident in question occurred at dusk on 13 July 2008. The defendant was riding his motorbike along Valley Road, Lambeth, London and the claimant, who was celebrating his birthday, was walking along the same road towards a pub to have a drink with his friends. The defendant was travelling in a broadly northbound direction, and the claimant was walking in a southerly direction, along the pavement on the opposite side of the road.
The accident occurred as the defendant approached an informal pedestrian crossing comprising two bollards in the middle of the road. There were speed bumps on each side of the road just before the crossing, and hatched road markings in the middle of the road before and after the crossing. The road was long and straight with a 30 mph speed limit and, at the relevant time, cars were parked on the defendant’s side of the road but not on the other side of the road.
The claimant had no recollection of the accident. Although he denied being drunk, his medical records indicated that in about 2006 he had a drink problem and the trial judge was not persuaded that he was a reliable witness. By contrast, the defendant was regarded as a reliable witness and the trial judge accepted his evidence, as to how the accident occurred. The defendant was travelling at about 30 mph in third gear and the impact occurred at a spot about 10 metres before the southernmost bollard. The defendant first saw the claimant when he (the defendant) was about 20 metres from the bollard. The claimant, who had walked beyond the crossing, ran across the road diagonally towards the defendant, when only about 10 metres from him. Although the defendant tried to swerve to avoid the claimant, he ended up clipping his trailing leg.
The defendant accepted that he had not braked on his approach to the pedestrian crossing: the claimant ran out before the defendant would ordinarily have needed to brake for the speed bumps. He did however brake when he saw the claimant and tried to avoid him sounding his horn.
First instance decision
Mr Recorder Hollington QC held that an ordinary prudent motorcyclist would have been travelling at less than 30 mph at that point in the road. The defendant should have been braking earlier, so as to be travelling at no more than 20 mph when he first saw the claimant crossing the road. He also held that on the balance of probabilities the collision would not have occurred had the defendant's speed been 20 mph.
In respect of the claimant he found that he had drunk significantly more than he admitted to, so much so that his ability to take care of himself, and other road users was significantly impaired. The claimant did not look carefully to his left and ran into the path of an oncoming motorcyclist. Even if the defendant had been travelling at 20 mph he would have had to take emergency evasive action, so as not to crash into the claimant but with the real possibility that he would have crashed himself.
The judge concluded that it was the claimant who was entirely to blame for the accident and the limit of the defendant's negligence was that he should have braked earlier. Crucially, he reasoned that the risk of the claimant crossing the road at least 10 metres away from the crossing was not one that the defendant should reasonably have foreseen. This was a case where, “the conduct of the claimant is so wholly unreasonable and/or of such overwhelming impact that the conduct eclipses the defendant's wrongdoing and constitutes a novus actus interveniens.” Put another way, the claimant was entirely the author of his own misfortune and his claim was dismissed.
The claimant appealed, arguing that the judge was wrong to find that the risk that presented itself to the defendant was not a risk that he should reasonably have foreseen. Reliance was placed upon the principle that “…failure to anticipate carelessness on the part of others is regarded as carelessness in itself”. It was submitted that it was entirely foreseeable that a pedestrian might attempt to cross the road where the claimant did. The fact that the claimant had passed the informal pedestrian crossing did not mean that his crossing was not foreseeable, as people may well cross the road in the vicinity of a crossing. It was argued that this was really an apportionment case.
Court of Appeal findings
Christopher Clarke LJ, Simon LJ and Ellis LJ upheld the trial judge's conclusions and dismissed the appeal. Clarke LJ said:
“Given the defendant had seen the claimant pass the bollards, the appointed natural place for anyone to cross and then proceed some 10 metres onwards, it was open to the judge to hold that it was not reasonably to be foreseen by him that the claimant would, when the defendant was 10 metres away, run out into the road towards him, crossing over on to his side of the road and into the path of the moped which he was driving on the correct side. The claimant had given no indication of any intention to cross the road and that his progress down the pavement indicated the opposite. There was nothing in the way in which he conducted himself that indicated that he was or might be drunk or disturbed.”
The action of the claimant was an egregious folly. In one sense any sort of foolishness is foreseeable, as it is well known that some people do silly or absurd things or deliberately take risks. “The question, however, is 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 a failure of his to brake sooner.” The trial judge was entitled to make the finding on the lack of foreseeability; it was not incumbent on the defendant to take steps to avert a risk of which he neither was, nor should have been, aware of.
Counsel for the defendant had submitted that whilst the trial judge’s overall conclusion was right, he was wrong to find the defendant should have been travelling any slower. The Court of Appeal agreed. In light of the earlier finding that the claimant’s crossing was not a risk that the defendant should have reasonably foreseen, the judge had fallen into error.
Novus actus interveniens?
Even though the claimant’s claim failed on the issue of foreseeability, the Court of Appeal gave some consideration to the issue of novus actus interveniens. They expressed considerable doubt as to whether it was open for the judge to regard the claimant’s actions as a novus actus. The caselaw demonstrates that a claimant’s actions may be such that a defendant is not responsible even for foreseeable damage. However, it would require exceptional circumstances to deny a claimant who had surmounted the hurdles of foreseeability, negligence and causation any remedy at all. Otherwise there would be plenty of cases involving the contributory negligence of pedestrians running out into the road where recovery would be denied.
The reason for imposing any liability on a defendant is because in the circumstances he should have foreseen the risk which materialised, and for that reason, owed a duty of care not to injure even the foolish. It was difficult to see therefore why a defendant should be absolved of any liability and the claimant denied relief, save in extreme circumstances. The court suggested that these might arise if, for example, a group of youths were engaged in goading each other to run as close to oncoming traffic as was possible.
For further information please contact Jamie Azim, Senior Solicitor, on 0207 6459511 or by email at firstname.lastname@example.org.
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.