CC v TD: Contributory negligence when crossing the road

In the recent case of CC v TD [2018] EWHC 1240 (QB) https://www.bailii.org/ew/cases/EWHC/QB/2018/1240.html the claimant brought a claim against a motorist on behalf of the estate of her husband (“the deceased”) under the Law Reform (Micellaneous Provisions) Act 1934 and on behalf of herself and three children as dependents under the Fatal Accidents Act 1976.

On 21 June 2014, at approximately 1 am, the deceased was attempting to flag down a taxi after leaving a public house. His subsequent medical records showed that he was intoxicated with 202 milligrams of alcohol in his blood.

He was tragically killed in a road traffic accident when crossing, on foot, the A45 Fletchamstead Highway in Coventry. The speed limit on that particular stretch of road was 40mph.  Expert evidence established that the motorist was travelling at a speed of approximately 86mph.

Primary liability was admitted. However, contributory negligence remained in dispute.

The insurers alleged that the deceased was contributorily negligent; firstly for failing to use a “Puffin” pedestrian crossing which was located 82.75 metres away from the accident location; and secondly, for failing to observe the approach of the vehicle and crossing into its path.

HHJ Freedman considered that the failure to use the crossing did not constitute negligence:

“Much will depend upon the construction of the carriageway, the volume of traffic, the time of day, lighting and visibility. Given that the accident occurred at about 1am, it is virtually certain that the volume of traffic would have been light……It would not be reasonable to conclude that the deceased failed to take reasonable care for his own safety by not using the Puffin crossing.”

HHJ Freedman also rejected the second allegation made by the defendant. The mere fact that the deceased was intoxicated at the time, did not expose him to criticism and his actions were to be judged by reference to those of a sober person. In this case, a sober person could not have appreciated that the motorist was traveling more than twice the speed limit. The judge held that the accident was caused wholly by the negligent driving of the motorist.

I have acted for a number of clients who have been seriously injured whilst attempting to cross roads. The impact of such accidents can be life changing and have devastating consequences. Therefore, apportionment of blame  in such cases  tends to be in pedestrians’ favour based on the fact that a car can inflict serious injury.  It is well recognised by the courts that the driver of a vehicle has a duty to take reasonable care to avoid causing damage to others using or present on the highway.  Motorists are in control of a potentially dangerous weapon and therefore must act with greater vigilance.