Pedestrian v car: High Court considers relative contribution of claimant pedestrian and defendant driver in serious accident on busy London street

Posted: 08/01/2018

The High Court has once again looked at the issue of relative responsibilities of pedestrians who attempt to cross the road in an unsafe manner or place and drivers who are travelling too fast.

Just before Christmas, judgment was given in the case of Bruma (A Protected Party, by her husband and litigation friend Bruma) v Hassan and another [2017] EWHC 3209 (QB) which related to an accident on 1 November 2012. The claimant had worked a night shift and was on her way home from work at around 6am. Her employer had given her a lift from her place of work to the underground station at Highbury & Islington. He stopped his car on the Holloway Road, about 50 metres away from the underground station entrance, but on the opposite side of the road. It was dark but there were street lights in the area. There had been light rain and so the roads were wet.

The claimant got out of the car and stepped onto the pavement. To reach the underground station entrance, she needed to cross the Holloway Road. There was a pelican crossing further down the road towards the entrance. However, the claimant did not elect to walk to the crossing and use it but instead tried to cross the road from where she was standing. It appears that she crossed the first two lanes but as she proceeded across into the first lane of the opposite carriageway, she was hit by a car driven by the defendant. His evidence was that he had only seen her immediately before the collision. As a result of the impact, the claimant suffered catastrophic and permanent injuries.

The High Court heard evidence from various individuals and concluded that the defendant’s driving had fallen below the standard to be expected of a reasonably competent motorist in the conditions which prevailed at the time. It was held that he should have been driving at a significantly lower speed and keeping a more alert lookout. Had he done so, he would have seen the claimant earlier and been in a position to stop / swerve to avoid a collision. It was probable that the accident would have been avoided.

The court therefore decided that the defendant was at fault and liable for the claimant’s injuries. The next issue it had to address was the extent to which the claimant should be held responsible for the accident due to her own actions. There was much debate as to whether she had walked across the road or run, but the court ruled that she had been walking. However, it also held that she should bear some responsibility for the accident as she had elected to cross four lanes of a main road in the dark, not used the pedestrian crossing and either not noticed or misjudged the speed of the defendant’s car. When considering the relative ‘causative potency’ of the actions of both the claimant and the defendant, the court held that the defendant should be found 80% to blame for the accident and the claimant 20%.

Philippa Luscombe, partner in the personal injury team at Penningtons Manches, comments: “For pedestrians to succeed in a claim against the driver of a car who has hit them, it must be shown not just that the driver was driving in an unsafe fashion – for example, too fast, under the influence or not keeping a look out – but that had the driver been driving appropriately, the accident would have been avoided or the severity of the impact and the injuries would have been reduced. Even if it is found that the defendant driver is at fault, claimant damages can be reduced by a percentage to reflect the fact that their conduct contributed to the accident and that they put themselves at risk. The relative contributions in such a scenario are always open to debate and the Bruma case is a good example of the issues that the court needs to consider when making that ‘split’.

“There were some interesting findings in this judgment. As is nearly always the case in road traffic accidents, the issue of the driver’s speed was a focus. It is easy to assume that a driver driving at or within the speed limit will not be found at fault. However, the court made very clear here that the question is not whether the defendant driver was driving within the speed limit but whether he was driving at a speed reasonable in the circumstances.”

His Honour Judge Curran said: “It is not in my view a counsel of perfection, nor anything like one, to say that a motorist driving, as Mr Hassan was, in the hours of darkness in early November, on a wet main road close to a major London Underground station, should not be driving at the maximum permitted speed, even if there are not as many people about as there would be during the rush-hour. 30 mph, as the Highway Code puts it, is ‘the absolute maximum’ for any car at any time, even in broad daylight, on a dry road, and early on a summer morning with no other traffic or pedestrians in sight. The contrast between such conditions and those in this case, a wet road in the month of November during the hours of darkness, with other traffic and pedestrians in sight, requires no emphasis. To that extent at least it seems to me that Mr Hassan's speed was probably excessive. In my view, the maximum speed at which he should have been travelling would have been in the region of 20 mph.”

The court specifically made the point that the defendant’s degree of fault in his driving was not very great but that nonetheless his speed and failure to keep a lookout fell below the standard to be expected of a reasonably competent motorist in the conditions which prevailed at the time. It ruled that these failures were the greater factors in causing the accident.

This case is therefore a good reminder of the tests to be applied both in determining whether a driver is at fault in civil liability terms and also when looking at the relative causative potency of actions in scenarios where a pedestrian is hit by a car in an accident which is partly due to their own actions. 

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