Contributory negligence: pedestrian v motorist

By Carla Jordan a serious injury solicitor at Irwin Mitchell

Pedestrians are known to be one of the most vulnerable road users, particularly when crossing roads. 

As pedestrians, we have no external protection and may suffer serious injuries if we were to get struck by a moving vehicle. It can be difficult to anticipate the actions and speed of oncoming traffic as pedestrians lack the speed to take evasive action to get out of the way quickly.

Contributory negligence 

Even if a motorist is found to be primarily liable for the accident, there may be a finding of contributory negligence if the pedestrian is also at fault for the accident. If a court finds the pedestrian was also at fault of the accident, a percentage may be deducted from any damages awarded to reflect contributory negligence.  

Each case is fact specific. It may not just be one party at fault for the accident. An apportionment of fault therefore maybe struck in those cases.

Apportioning blame 

When apportioning blame there is a trend for drivers to have greater responsibility placed on them and to be found more at fault for road traffic accidents. The law takes into account the fact that a driver is in control of a vehicle which is perceived as a potential lethal weapon.

We know that if a car strikes a pedestrian it is more likely that the pedestrian will be more seriously injured than the driver. However,  pedestrians also have a responsibility to take care for their own safety.

For instance, in Baker v Willoughby, the pedestrian claimant saw a car approaching 100 yards away but walked to the centre of road and, as he paused to look left, he was hit by a car driven by the defendant. 

The Court of Appeal apportioned liability 50/50 on the basis that each party should have seen the other, but the House of Lords allowed the claimant’s appeal and changed the apportionment to 75/25 in favour of the claimant. The court found that the motorist failing to keep a lookout had a more disastrous effect than the pedestrian failing to look.

Arguably drivers therefore owe a higher duty of care. This has led to some surprisingly lenient judgments in favour of pedestrians in cases where the blame seems to lie predominantly with the pedestrian. It is rare for a pedestrian to be found more than 50 per cent contributory negligent.

Drunken pedestrians 

The vulnerability of pedestrians is heightened when they are under the influence of alcohol as they often fail to take normal road safety precautions. They are an additional hazard for drivers to be cautious of. Whilst drunk pedestrians may be partially at fault, the courts still seem unwilling to place all the blame on them, even in cases of extreme drunkenness.

In Cook v Thorne and Parkinson [2001] EWCA Civ 81, the claimant got out of the second defendant’s car to be sick due to excess alcohol. It was dark and the road was straight and unlit. The claimant, who was in the roadway, was struck by a car coming in the opposite direction, driven by the first defendant. The claimant was found to be 30 per cent to blame, and the balance of liability was shared on a 70/30 basis between the two defendants, with the first defendant taking the major share.

Accidents involving children

We all know that children are amongst the most vulnerable pedestrians.

Children are not expected to exercise the same standard of care as adults. It would be rational to suggest that when judging the actions of a child the standard of care is measured by that reasonably expected of a child of the same age, intelligence and experience. Arguably, a child should only be found  contributory negligent if they are of such an age as to be expected to take precautions for their own safety.

For example, it would be unjust to find a young child at fault for crossing a road where they shouldn’t when they are not aware of the road risks of a driver driving too fast and failing to keep a proper look out. It would be hard for a young child to judge the speed and stopping distance of the car.  

The age of the child therefore is an important factor when considering the amount of fault that is to be attached, but no clear line is drawn, making it challenging for the court to assess.

In a Jackson v Murray [2012] a 13-year-old girl was found to be 90 per cent to blame for an accident when she emerged from behind a school bus and began to walk across the road when she was struck by a passing car. 

On appeal the driver’s degree of fault was increased from 10 per cent to 30 per cent as the defendant had failed to reduce his speed after seeing the school bus and did not adequately anticipate a child may walk across the road.

The Supreme Court, however, reduced the finding of contributory negligence and held that they were equally to blame. The court's findings focused on the fact that a 13-year-old would not necessarily have the same level of judgement and self-control as an adult. The young girl had to take account the defendant’s car approaching at speed, in very poorly lit conditions, with its headlights on. 

This highlights the incredible difficulties the courts face when assessing a pedestrian’s contribution to an accident, here three different courts all made different assessments of contributory negligence on the same facts.

Summary

I believe the statement that every case turns on its own facts remains very true. It is clear that to obtain a finding of more than 50 per cent liability against a pedestrian requires something amounting to gross negligence on the part of the pedestrian. Despite a pedestrian stepping out in front of a driver, drivers still owe a greater duty of care to pedestrians and must be aware of the presence of pedestrians.

Find out more about Irwin Mitchell’s expertise in supporting pedestrians following road collisions at our dedicated pedestrian accident claims section.