Accidents involving Pedestrians - Review of Court of Appeal Decision

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This article written by Partner and Head of Motor Simon Stanfield looking at recent Court of Appeal decisions surrounding in road traffic accidents involving pedestrians and what it means for future decisions.

Accidents involving Pedestrians

Practitioners will be familiar with Road Traffic Accidents involving pedestrians. Some of these will be high value claims unfortunately resulting in life changing injuries , others will not be as severe and have a value under £25,000. Liability is not straightforward on these types of cases and as can be seen below the judgment as to balance of blame following recent decisions is now a fine line.

Those cases potentially worth under £25,000 will as of 31 July 2013 start life in the RTA Portal. Each and every case is fact specific and will in all probability fall out of the RTA Portal into the new world of fixed recoverable costs. To make these cases even more complex they will frequently involve children of differing ages and to be frank I consider that on the lower value cases the fixed costs to be quite frankly unfair in dealing with these types of cases.

It has now been over 10 years since the judgments of the Court of Appeal in Lunt v Khelifa [2002] EWCA Civ 801and Eagle v Chambers [2003] EWCA Civ 1107.

The Court of Appeal had taken a firm stance against drivers in collisions with pedestrians. The Court of Appeal referred to a vehicle as a “potentially dangerous weapon” and “the destructive disparity“.

Hale LJ provided the judgment of the court in Eagle v Chambers, in which she stated at Para 16:

“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. That is not this case. The court “has consistently imposed upon the drivers of cars a high burden to reflect that the car is potentially a dangerous weapon: Latham LJ in Lunt v Khelifa [2002] EWCA Civ 801, para 20.”

However, although these two cases appeared to be good authority, there have been a number of appeals to the Court of Appeal in the last 5 years. This year in Paramasivan v Wicks [2013] EWCA Civ 262 the Court of Appeal was faced with yet another appeal from the Defendant. So where are we now? The main cases over the last 5 years are listed below and the results of the appeals are listed below:

Ahanonu v South Eat London & Kent Bus Co Ltd [2008} EWCA Civ 274
The Court of Appeal substituted the trial judge’s finding of 50/50 to one of finding the Defendants not to be liable.

Qamili v Holt [2009] EWCA Civ 1625
The Court of Appeal dismissed an appeal by the Claimant of a finding that the Defendant was not negligent.

O’Connor v Stuttard [2011] EWCA Civ 829
The Court of Appeal allowed the Claimant’s appeal following the trial judge dismissing the Claimant’s action to one of 100% in favour of the Claimant.

Belka v Prosperini [2011] EWCA Civ 623
The Court of Appeal dismissed the Defendant’s Appeal and held the trial judge’s finding of one of 50/50.

Birch v Paulson [2012] EWCA Civ 487
The Court of Appeal dismissed an appeal by the Claimant of a finding that the Defendant was not negligent.

Rehill v Rider Holdings Limited [2012] EWCA Civ 628
The Court of Appeal substituted the trial judge’s finding of one third contributory negligence to one of 50/50.
Paramasivan v Wicks [2013] EWCA Civ 262

Facts

The Claimant was a 13 year old boy who was injured in a road traffic accident. The Defendant was driving along a typical suburban road with one lane in each direction. Ahead of the Defendant and to his right were some shops, a pavement and a lay-by. The Claimant was one of a group of youngsters congregating outside of the shop. Suddenly and without warning the Claimant threw an ice-cream at one of his friends and ran across the pavement, the lay-by, between parked cars, across the northbound carriageway and into collision with the Defendant’s vehicle. A split trial of the issue of liability was ordered.

At the first trial the Defendant’s evidence was that he had not noticed the group outside the shop or even seen the Claimant until the impact. One of the Claimant’s friends had provided evidence that the Claimant had been looking back over his shoulder as he ran across the road. The judge decided that the driver ought to have seen the group outside the shop. He found that the Claimant had been running at a speed of 3.6 metres per second when he was hit, and that the Defendant had been driving at 25 mph when he struck the boy, which was too fast in the circumstances. The judge considered that the Defendant ought to have been driving at 15 mph once he had seen the group, and that at a speed of 25 mph he had had no time to stop, whereas if he had been driving at 15 mph, he would just have been able to. The judge held that the Defendant was therefore liable, but that the Claimant was contributorily negligent, and he apportioned liability on a 50/50 basis.

Held by the Court of Appeal:

  1. The judge's conclusion that the Claimant had been running at 3.6 metres per second was well within the range of possible findings of fact available to him, and there was no reason for the court to interfere with it.
  2. The judge's conclusion that the Defendant should have seen the boys and reduced his speed to 15 mph was unrealistic and a counsel of perfection. The group had been quite far away from where the Defendant was driving, separated by a pavement, a lay-by and the northbound carriageway. There was a danger in the liberal use of hindsight, and a pedestrian's safety was not guaranteed: Ahanonu v South East London and Kent Bus Co Ltd [2008] EWCA Civ 274 followed. Further, there was nothing to suggest that they were about to run across the road. In the circumstances, there was nothing wrong with the Defendant driving at 25 mph.
  3. The judge's conclusion that the Defendant ought to have seen P was unchallengeable and inevitable.
  4. The judge's apportionment of liability could not stand. The Claimant was 13, but old enough to understand roads. He had created the hazard by doing something entirely unexpected and careless. The Defendant’s only fault had been failing to respond as he should have done in the briefest of moments. In those circumstances, the correct apportionment of liability was 75/25 in favour of the Defendant.

Analysis

As a practitioner what do we now need to be alive to?:

  • What is the age of Claimant? Age is very important. The Courts will be more sympathetic in the case of a young child as per O’Connor.
  • Did the pedestrian move suddenly into the path of the vehicle? If not, then as per Lunt and Eagle the driver of a potentially lethal weapon will often bear the greater share of responsibility
  • If the pedestrian moved suddenly could the Defendant have avoided the accident? If not, then primary liability may not attach see Ahanou, Qamili and Birch as the Court of Appeal will not impose a counsel of perfection.
  • If the pedestrian moved suddenly could the Defendant have avoided the accident or reduced the severity of injuries? If yes, then issues of contributory negligence arise
  • There are potential arguments over the distinction between “sudden” and “unexpected”
  • The cases of Lunt, Eagle and O’Connor are to be regarded as cases favourable to the Claimant.The more recent cases of Belka, Rehil and Paramasivan show that the Court of Appeal in vases not involving children, the Claimant is at risk of being found at least equally responsible for the accident in certain instances this may be more than 50%.
  • The cost of an Accident Reconstruction Report in the “new world” lower value cases
  • “New world” costs for lower value claims

This Article first appeared in the MASS Newsletter, December 2013: http://www.mass.org.uk/


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