Car v Pedestrians: The unpredictable issue of contributory negligence

On the 29 January 2022 the Highway Code was amended after an extensive consultation to strengthen protection for pedestrians and other vulnerable road users. These amendments enshrined the hierarchy that ‘those in charge of vehicles that can cause the greatest harm in the event of a collision bear the greatest responsibility to take care and reduce the danger they pose to others’.

In reality, a hierarchy between road users based on the respective risks and dangers is nothing new.

‘this court has consistently imposed on the drivers of cars a high burden to reflect the fact that a car is potentially a dangerous weapon’ Lunt v Khelifa [2002] EWCA Civ 801

How this plays out when considering and determining culpability in accidents involving pedestrians is more difficult to predict and there is a raft of inconsistent cases which wend a confusing path through the issue of contributory negligence.

The starting point for any allegation of contributory negligence, irrespective of the accident circumstances, is the Law Reform (Contributory Negligence) Act 1945. Section 1 states:

‘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’

To successfully raise a defence of contributory negligence the Defendant must prove that the Claimant’s own actions were a cause of harm. The test is an objective one based on the plain ordinary common sense assessment of whether the Claimant took reasonable care of their own safety. The legal factors in determining contributory negligence align with those required for a finding of primary negligence including the standard of proof, foreseeability and causation. Lord Denning directed the Court to consider both the causative potency of a particular factor and the blameworthiness of a Claimant (Davies v Swan Motor Co (Swansea) Ltd [1949] 2 KB 291).

Accidents between pedestrians and cars almost always include an allegation that a pedestrian entered the road without warning and that the car driver had no time to react. In these circumstances the geography of the accident locus comes into play and the Court will consider, amongst other factors, the existence of hazards and the clarity of sight lines. The Court will likely have in mind the amended highway code guidance that pedestrians waiting to cross at a junction or pedestrian crossing now have the right of way even if they have not yet entered the carriageway. In reality, however, geographical considerations have the potential to both help and hinder the success of a contributory negligence defence. A Claimant who crosses 50 meters from a designated crossing, for example, might be considered more culpable than a Claimant who crosses at a zebra crossing without looking.

Other factors might also be raised by Defendant’s when formulating a contributory negligence defence. A recurrent theme in caselaw is whether inebriated Claimants are more or less culpable for their actions. The Supreme Court provided guidance on the relevance of alcohol in the case of Liddell v Middleton [1995] 7 WLUK 79.

‘It is not the fact that a plaintiff has consumed too much alcohol that matters, it is what he does. If he steps in front of a car travelling at 30 mph at a time when the driver has no opportunity to avoid an accident, that is a very dangerous and unwise thing to do. The explanation of his conduct may be that he was drunk: but the fact of drunkenness does not, in my judgment, make the conduct any more or less dangerous and it does not in these circumstances increase the blameworthiness of it.’

Irrespective of the capability linked to alcohol consumption the practical realities of an inebriated Claimant are that their evidence is likely to be less credible. Where there is a direct factual dispute about the accident circumstances there is clearly a risk that the sober party will be believed. The quality of a Claimant’s recollection is often, however, a problem in such traumatic accidents irrespective of the involvement of alcohol. Claimants regularly suffer periods of amnesia covering both pre and post-accident or formulate uncredible recollections due to the sudden and distressing nature of the accident.

As such those who act for Claimant’s should steer the Court’s deliberations away from the Claimant’s oral evidence and towards factors known by the parties from other sources such as locus reports, police investigations and independent witnesses.

It is fair to say that the Defendant’s evidence might also be limited. They rarely see the Claimant before the impact. It is just as possible that this was because they were not paying sufficient attention as it is that the Claimant was not there to be seen. It is important to understand that the difference between these two conclusions can be a matter of seconds.

There are no rules or caselaw which fetters the Courts discretion in respect to contributory negligence or the deduction which it considers is just and equitable. Ultimately, a finding of contributory negligence and the relevant apportionment turns on the facts of the case and the Court as a consequence has a wide discretion. It is also worth noting that the higher courts have been slow to interfere, with findings of and apportionment for, contributory negligence. It is for these reasons that such a wide range of apportionments exist in cases which appear similar on their facts. Only time will tell whether the changes to the Highway Code will result in a significant reduction in contributory negligence findings and apportionments in such cases.

Whilst not binding, caselaw can still be useful. Past apportionments can assist in negotiations with the other party in proceedings and also in managing client’s expectations in respect to the overall likely settlement amounts.

Check out a selection of cases which may prove useful for reference purposes below: