Car vs Pedestrian

Grepped the following from uk.legal.moderated. It's certainly of
interest to cyclists:

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Killing machines
by Stephen Cottrell, 1 Temple Gardens

It is very rare for a decision of an appellate court to refuse
permission to appeal to be worthy of comment. But the Court of Appeal, in
refusing a Defendant permission to appeal against an apportionment of
liability in a road traffic case in Parkinson v Chief Constable of Dyfed
Powys Police [2004] EWCA Civ 802 10 June 2004, confirmed the recent

attitude

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of the higher courts to the division of responsibility between

drivers who

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injure negligent pedestrians and their victims. It seems that now, in any
case where criticism can be levelled at the both driver and pedestrian,
there is effectively a presumption - seemingly based upon public policy
considerations - that the driver will bear the majority of

responsibility,

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and therefore that insurers should be expected to foot the bill for
negligent pedestrians.

In Parkinson the Claimant was under the influence of alcohol

and had

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stepped out from behind a parked taxi into the path of the Defendant's
police car, which he should have seen. The Defendant's driver was

driving at

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40mph (above the speed limit) in a built up area at night and ought

to have

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anticipated that pedestrians might emerge from behind the parked

taxi. The

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trial judge held the Defendant 65% responsible and the Claimant 35%
responsible. No doubt this was a nasty shock for the Defendant and

his legal

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advisors. Many common lawyers would disagree with that apportionment. The
reasoning of the trial judge was somewhat unusual. He found that the
Claimant's most serious injuries would have been avoided had the

Defendant's

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vehicle been driven at a reasonable speed and that the Defendant's
negligence therefore had a greater 'relative causative potency' than

that of

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the Claimant, so that the Defendant should bear the greater degree of
liability.

It will not have come as a surprise that the Court of Appeal

refused

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to interfere with that apportionment, holding that the decision was

within

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the 'appropriate spectrum within which judges can be said properly to
disagree'. More noteworthy was the description by Latham L.J. of the

humble

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motorcar which was, "as the courts have repeatedly said, effectively a
dangerous instrument for causing injury to others". While that is

clearly a

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good rationale for holding the standard of care on drivers to be a

high one

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(higher for example than the standard of care expected of pedestrians

to one

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another while walking along a crowded street), it seems somewhat odd

to use

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this reasoning to justify a decision that a car driver who was

exceeding the

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speed limit and not looking out for tipsy pedestrians emerging from

behind

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cars should bear more responsibility than the person who steps out in

front

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of the speeding car without looking properly and from a dangerous

position.

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While a decision to refuse permission to appeal such as

Parkinson is

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not authority for any general proposition, the Court of Appeal in Lunt v
Khelifa [2002] EWCA civ 801 and Eagle v Chambers [2003] EWCA civ 1107

have

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come close to articulating a doctrine that the car diver will

generally be

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held to bear the majority of blame in running down cases. In Eagle, the
Court allowed an appeal by a Claimant pedestrian against an

apportionment of

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liability that had been put at 60/40 against her, substituting it for

60/40

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in her favour. The Court reiterated the need for a judge assessing
contributory negligence to look to the blameworthiness of the parties as
well as to the 'causative potency' (or 'destructive disparity'😉 of the
parties. Hale LJ (giving the judgment of the Court) stated:

"A car can do so much more damage to a person than a person can
usually do to a car. [] The potential destructive disparity between the
parties can readily be taken into account as an aspect of

blameworthiness.

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[] It is rare indeed for a pedestrian to be found more responsible than a
driver unless the pedestrian has moved into the path of an oncoming
vehicle." She went on to cite Latham LJ in Lunt (above), who had stated:
"the court has consistently imposed upon the drivers of cars a high

burden

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to reflect the fact that the car is potentially a dangerous weapon."

Whatever the precise ratio of the above decisions, they do not make
happy reading for motor insurers. The effect of these cases is to

create an

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effective presumption that the negligent car driver (or perhaps the

driver

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of the larger, more dangerous vehicle, where there is a collision between
two road vehicles) will normally be required to bear the greater
responsibility than the negligent pedestrian with whom he is in

collision.

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This presumption can of course be rebutted, but even in circumstances

where

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the driver's negligence is a 'lapse' and the pedestrian acts in

folly, the

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driver may still bear the greater burden of responsibility upon
apportionment. It is important to understand that this presumption

will only

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arise once the Court has found as a fact that the driving in question was
negligent - there is no guarantee that the driver will be held partly to
blame in every running down case. Once that threshold has been crossed,
however, the chances of a split on liability substantially in favour

of the

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driver are slim. Tactically, there may therefore be a real advantage to
insurers in making no admission as to negligence where their client has a
real prospect - no matter how distant - of avoiding liability, rather

than

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admitting liability and making an offer of (say) 80/20 in favour of the
driver. From a Claimant's point of view, if negligence is established

there

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will little justification in the majority of running down cases in

accepting

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anything less than 50% in negotiations.