There is a trend in Court decisions where a driver is found to blame, but the pedestrian, cyclist or motorcyclist involved is found partly to blame. That means they have contributed to their injury – contributory negligence.

The theme in these cases is risk taking. The driver should have seen you, slowed down and been ready to stop, but you should not have taken a risk.

A recent case explains the law nicely.

In the early hours two men were going home from the pub. They had been drinking but were not drunk. They had to cross a two lane carriageway close to a roundabout. They used a crossing, but it was not controlled by lights, and they did not have priority over cars. One man held back and the other crossed. A taxi was on the roundabout and was to exit into the road the men were to cross. The taxi hit the man who decided to cross.

The accident was analyzed to show what should have been seen by the driver and pedestrian, what speed was sensible for the taxi, and how both should have behaved. The Judge saw the facts this way:

• The bypass is one of five roads leading into and out of a roundabout. The taxi entered the roundabout from a road almost opposite the entrance to the bypass. For the taxi driver the bypass was his third exit. The accident occurred on what was for the injured pedestrian the nearside lane of the bypass. Just before the impact the taxi’s speed was about 25 to 30 mph and within the speed limit.
• The pedestrians had crossed the two lanes of the bypass which led into the roundabout and reached the “refuge” half way across it.
• The Judge found that the driver should have seen the two men on the refuge by the time he was about 30 metres away from the refuge.
• The judge found that it was likely that the second pedestrian deliberately waited for the taxi to pass, but the Claimant decided to run across the road. In the words of the Judge the Claimant “took a risk setting off when, unless the driver took some avoiding action, an accident was likely”. Implicit in this finding is a finding that the pedestrian deliberately took the risk of trying to cross the road in front of the taxi.
• The taxi driver gave evidence that he saw from about 25 to 50 metres away only one person on the refuge, who must have been the pedestrian who waited. He first saw the man who crossed at the last moment in a position on the offside front of his car (right side). He braked and swerved to the right but was unable to avoid a collision.
• The Judge found that the driver should at about the 30 metre mark have seen both men on the refuge. Even on the driver’s account of seeing only one pedestrian he should have taken his foot off the accelerator as a precaution against any untoward movement by that pedestrian. The judge concluded that “with a better look out, and a slight easing of speed I am satisfied that the accident would have been avoided” because the pedestrian would then have crossed the road in front of the taxi.

So there you have it. The driver was found to blame, but the pedestrian was found to have contributed by two thirds. That means the taxi driver was liable to pay compensation, but the compensation was discounted by two thirds to account for the blame of the pedestrian.

The Court of Appeal considered an appeal from the pedestrian, but turned it down. For an appeal to be successful the Judge must have got the law wrong, applied it incorrectly, or misunderstood the facts. No such problem was found so the appeal was unsuccessful.

There is a careful balance to be struck in these cases. The law takes into account the potential damage which can be caused by a motor vehicle, so places a heavy responsibility on drivers. The other side of the balance is that pedestrians who are shown to take a risk will have to pay the price of their own responsibility for their own safety.

You will find a motorcyclist filtering past queuing traffic winning his case, but being criticised in contributory negligence if you click here.

The case was heard in May 2011 by the Court of Appeal and is called Belka v Prosperini [2011] EWCA Civ 6

Source –BAILLI