Apportioning liability for a collision between a motorist and a pedestrian

The Court of Appeal considered the correct balance to be struck between causative potency and blameworthiness when apportioning liability for a collision between a motorist and a pedestrian. Motorists would generally be found to have high levels of both because of the “destructive potential” of a car.

A motorist appealed against the extent to which a judge had reduced the damages awarded to the respondent pedestrian for injuries sustained in a road traffic accident. The trial judge found that the pedestrian had got out of a car parked a few metres beyond a pedestrian crossing on a busy road with shops either side. She had seen the car approaching at normal speed but had misjudged its position and attempted to cross the road. The motorist had a clear view of her but did not see her. The claimant was struck by the front offside of the car when she was almost four metres into the carriageway, causing significant injuries. The judge found the motorist liable for the accident but found contributory negligence on the part of the pedestrian of 25%.

The Court of Appeal held that the two aspects to apportioning liability between parties to a road traffic accident were their respective causative potency and their blameworthiness. The destructive potential of a vehicle was relevant to both those aspects. It would be rare for a pedestrian to be found more responsible than a drive. Driving a car without keeping a proper lookout where pedestrians were reasonably expected to be present would indicate considerable degree of blameworthiness, Jackson v Murray [2015] UKSC 5, [2015] 2 All E.R. 805 followed and Eagle v Chambers (No.1) [2003] EWCA Civ 1107, [2004] R.T.R. 9 considered. The court could not accept that the pedestrian had taken a deliberate risk, but she was clearly blameworthy for misjudging her own safety. However, she had not put the motorist in danger or in an emergency situation and he ought to have seen her. Both the causal potency and the blameworthiness of his conduct were very substantially greater than that of the pedestrian. The judge’s assessment of how the pedestrian’s damages should be reduced having regard to her share in the responsibility for the damage was reasonable and should not be interfered with. The appeal was therefore dismissed.