Pedestrians: contributory negligence and causative potency
Adams v Gibson
26 October 2016
A finding of contributory negligence of one third has been made against a brain injured pedestrian who failed to use a nearby pedestrian crossing. The defendant had been negligent in failing to keep an eye on the claimant and to anticipate his stepping in to the road. However, the claimant should not have attempted to cross without using the pedestrian crossing and should have checked for traffic approaching from his right before stepping out. Caroline Hickerton reviews the judgment in the recent High Court decision in Adams v Gibson (2016).
The accident occurred shortly before 11pm on 17 October 2011. The defendant was driving through a built up residential area in Feltham, London. The road was single carriageway with a 30mph speed limit and several sets of speed bumps. The road featured a humped pedestrian crossing with a set of railings on both sides of the road guiding pedestrians towards the crossing.
Although there were factual disputes in several areas, HHJ Freedman made the following relevant findings of fact:
the immediate accident location was adequately lit;
the defendant was not travelling at excessive speed;
there was no impediment to the defendant’s vision;
the defendant had seen the claimant, approximately five seconds prior to the collision, standing on the kerb before the start of the railings to the south of the pedestrian crossing;
the claimant then sought to cross the road, ahead of the pedestrian crossing, at something like a 45 degree angle;
the claimant did not check for traffic approaching from his right before stepping out;
the claimant crossed the road from the defendant’s nearside and was struck by the nearside of the defendant’s vehicle which was travelling north;
the collision occurred just before (and south of) the pedestrian crossing.
HHJ Freedman apportioned liability on a two thirds/one third basis in favour of the claimant.
He found that five seconds was sufficient time for the defendant to have stopped the car or to have slowed down (which would have reduced the severity of injury) and that the defendant should have foreseen that the claimant, stood on the kerb as he was, might step in to the road. The defendant offered no explanation of why he had not kept his eye on the claimant after he first saw him and his evidence was that he had not seen him again until the moment of the collision. The defendant knew that pedestrians might be in the vicinity and had failed to exercise the care of a reasonably prudent motorist.
However, HHJ Freedman also found that the claimant was at fault in “two material respects” as follows:
1) I am satisfied that he did not look to his right before stepping out in to the road…Had he looked to his right then he would have stayed on the pavement to let the defendant’s vehicle pass. 2) He chose not to use the pedestrian crossing, he should have done.
The claimant having consumed alcohol was found to be an explanation for his actions but was not in itself blameworthy.
For further information please contact Caroline Hickerton, Senior Solicitor on 0161 603 5234 or at Caroline.Hickerton@dwf.law
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