Contributory Negligence and the Vulnerable Road User

Preface

Personal injury lawyers will be well familiar with the concept of contributory negligence. This article is intended to give guidance to practitioners in more unusual cases where assessment of contributory negligence may be more complex than it first appears, focussing particularly on road traffic claims brought by vulnerable road users.

General Principles

Pursuant to s1(1) of the Law Reform (Contributory Negligence) Act 1945:

Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.

In road traffic claims brought by vulnerable road users, the same general principles relating to the contributory negligence doctrine apply as with any other claim. Accordingly, in determining whether to make a reduction for contributory negligence and to what extent, the court will consider:

1. The “moral blameworthiness” of the respective parties; and
2. The causative potency of the parties’ actions.

The assessment of moral blameworthiness will be highly fact specific, taking account of factors such as speed, intoxication, general behaviour and awareness and, perhaps, the use of reflective/protective gear, particularly by cyclists/motorcyclists.

As to causative potency, in claims involving vulnerable road users the courts have readily accepted that the damage likely to be caused by a motor vehicle to a pedestrian/cyclist is highly relevant when assessing contributory negligence: Sinclair v Joyner [2015] EWHC 1800 (QB) at §73.

It should be borne in mind that the doctrine does not apply to claims in trespass to the person: Pritchard v Co-operative Group Limited [2011] EWCA Civ 329. It will not, therefore, be open to a defendant to raise contributory negligence if, for instance, he has used a car to intentionally run down a pedestrian, even if that pedestrian was obstructively standing in front of the car.

In a road traffic context, therefore, it is likely only to be claims in negligence which give rise to the partial defence of contributory negligence. Such a defence must be pleaded and proven by the defendant and it is not open to the court to make a finding in the absence of such a pleading.

Below are some case examples, from various contexts, which may assist readers in the assessment of contributory negligence in their own cases:

Pedestrians

McDermott v Pettit [2011] EWHC 3074 (QB) – 10% reduction – the Claimant was struck by the Defendant’s car when crossing the road in the early hours of the morning. He was 10 metres away from the nearest pedestrian crossing. The Defendant driver was driving at in excess of the speed limit with an excessive blood alcohol level.

Carpenter v Lunnon [2004] EWHC 3079 (QB) – 20% reduction – the Deceased pedestrian was walking at the edge of the carriageway of a country lane (there was no pavement) when he was hit from behind by the Defendant’s vehicle. He had been walking in the direction of the flow of traffic. He was wearing dark clothing and it was a dark night, such that the Defendant’s opportunity to see the Deceased before the collision was reduced.

Sedge v Prime [2011] EWHC 820 (QB) – 25% reduction – the Claimant, who had been drinking, stepped out into a bollarded road used by both pedestrians and vehicles, and into the path of the Defendant’s car, without looking. The Defendant had been driving far too quickly for the road conditions and had not been paying sufficient attention to the road conditions and the presence of the Claimant.

Hickman v London Central Bus Co Ltd [2013] EWHC 1703 (QB) – 40% reduction – the Claimant was hit by a bus which pulled away from a stationary position at traffic lights when they turned from red to green. The Claimant had crossed directly in front of the bus, ahead of the traffic lights and pedestrian crossing, expecting that the lights would remain on red. The bus driver did not see him prior to the collision.

Hill v Master Concrete Northern Limited [2010] EWHC 3613 (QB) – 50% reduction – the Claimant was hit by a lorry driving at slow speed which turned into a side road which she was attempting to cross. The Claimant did not see the lorry despite its size and the noise it created. She had accordingly not looked properly. The lorry driver also did not see the Claimant, but this was due to a failure to look in the exact right spot at the correct moment. The balance of the moral blameworthiness lay against the Claimant but the causative potency of the lorry was such that, overall, it was appropriate to split liability evenly.

Ehari v Curry [2006] EWHC. 1319 (QB) – 70% reduction – the Claimant, who was a child, stepped out in front of the Defendant’s vehicle from behind a car which had completely concealed her presence until one second before the collision. The court accepted that the Defendant could not have braked to avoid the collision but found that he could and should have swerved to avoid the Claimant.

Watson v Skuse [2001] EWCA Civ 1158 – 80% reduction – the Claimant attempted to cross a pelican crossing when the lights were in favour of the flow of traffic. He stepped into the road directly in front of the Defendant’s lorry, out of view of the driver.

Cyclists

Smith v Finch [2009] EWHC 53 (QB) – no reduction – the Claimant cyclist was hit at speed by a motorcyclist and knocked from his bike. He was not wearing a helmet, although he did own one. Although the court held that wearing a helmet was a sensible practice, although not mandated by law, the Defendant called no evidence to establish that the injuries would have been less severe/avoided had the Claimant been wearing a helmet. Accordingly no reduction was made.

Rickson v Bhaker [2017] EWHC 264 (QB) – 20% reduction – the Claimant cyclist was knocked from his bicycle when the Defendant van driver, who had been travelling in the opposite direction, turned right across his path. The van driver was convicted of driving without due care and attention and accepted that the accident had primarily been caused by his negligence but alleged contributory negligence on the part of the Claimant. The court concluded that the Claimant could and should have taken evasive action in response to the movement of the van.

Sinclair v Joyner [2015] EWHC 1800 (QB) – 25% reduction – the Defendant car driver attempted to overtake the Claimant cyclist on a narrow country lane. The Claimant was riding in the middle of the road and lost control of her bicycle momentarily. The Defendant’s decision to overtake when there was insufficient room to do so safely deprived the Claimant of the opportunity to regain control of her bicycle and was thus primarily causative of the accident. The Claimant also bore some responsibility for riding in the middle of the road when she should not have been.

Reynolds v Stutt & Parker LLP [2011] EWHC 2263 (ch) – 66% reduction – the Claimant had deliberately caused a collision with a work colleague during a cycling event at a country park organised by his employer. He had declined to wear a helmet despite the fact that one was available. Whilst the employer had been negligent in the manner in which it organised the event, the Claimant bore the greater degree of responsibility for riding in such a dangerous manner.

Motorcyclists

Davis v Schrogin [2006] EWCA Civ 974 – no reduction – the Claimant motorcyclist was filtering past a queue of traffic when the Defendant car driver executed a U-turn, out of the queue of traffic, directly into the Claimant’s path. The Claimant had been so close to the Defendant’s vehicle before he executed the turn that he was unable to take any action to avoid the accident. The court accordingly declined to make any reduction for contributory negligence.

O’Connell v Jackson [1972] 1 QB 270 – 15% reduction – the Claimant motorcyclist was knocked from his bike when the Defendant emerged from a minor road into his path. The Claimant did not contribute to the accident itself but was not wearing a helmet. Medical evidence suggested that, had he worn a helmet, his injuries would have been lessened. A reduction was accordingly made to reflect this.

Jones v Lawton [2013] EWHC 4108 (QB) – 33% reduction – the Claimant motorcyclist was filtering past a lane of stationary traffic when the Defendant emerged from a side road, though the line of stationary traffic and into the path of the Claimant. The Defendant was primarily liable for failing to account for the possibility of a proceeding cyclist/motorcyclist and for failing to hear the motorcycle as it approached. A significant reduction was nevertheless appropriate since the Claimant was riding too quickly for the road conditions and had not noticed the gap in the line of traffic from which the Defendant emerged.

Ringe v Eden Springs (UK) Limited [2012] EWHC 14 (QB) – 80% reduction – the Claimant motorcyclist was significantly exceeding the speed limit and was overtaking an articulated lorry when he collided with the side of the Defendant’s van, which was emerging from a junction. Whilst the Defendant was negligent for failing to wait until he had a clear view of the road before pulling out, the Claimant bore the greater degree of responsibility for riding in such a dangerous manner.