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Written on 28th June 2020 by Kim Milan

The Court recently considered the correct balance to be struck in apportioning blame when deciding liability for an accident between a motorist and a pedestrian. The Court found that motorists would generally be found to have high levels of blame, because of the potential destructive nature of a car.

The accident

In the case of Sabir (by her litigation friend, The Official Solicitor) and Osei-Kwabena (O), the pedestrian (S) got out of a car which was parked immediately on a pedestrian crossing on a busy road with shops either side. She moved behind the parked car, looked at the road and saw the motorist approaching at normal speed. Unfortunately she misjudged the motorists position, thinking that there was enough time for her to cross the road. The motorist, who had a clear view of the road, approached but did not see S. O struck S when she was 4 meters into the carriageway. Sadly S suffered a brain injury. The first Judge found that O’s failure to pay proper attention had caused the accident but that S should take a 25% share of responsibility.

The appeal

O appealed this decision and said that S was more responsible for the accident. O said that S made a flawed decision to cross the road which made her more blameworthy than simply crossing the road without looking. O said that S just stepped into the path of an oncoming car and that she should therefore attract a greater share of responsibility.

The Court of Appeal held that motorists have a high burden of blame as a car usually did more damage to a person than a person did to a car. The destructive potential of a car, even driven at moderate speed, is relevant to blameworthiness and therefore made it rare for a pedestrian to be found more responsible than a driver.

If a motorist drives a car without keeping a proper lookout, where pedestrians are expected to be, then this indicates a considerable degree of blameworthiness. The Court could not say in this case that S had taken a deliberate risk. However they did find that, whilst crossing a busy road often involves an element of deliberate risk taking in any event, risk taking in this context meant conduct such as a pedestrian crossing the road when an accident was likely and unless the motorist took avoiding action. There was no indication that that was the case here.

The Judgment

The Court found that S was clearly blameworthy to an extent because she had misjudged her own safety but had not put O in danger or in an emergency situation. O ought to have seen her and therefore taken his foot off of the accelerator. Not only did he not do that but he also failed to see her at all for a significantly long period.

The Court of Appeal agreed with the first Judge’s decision of a 25% reduction in the pedestrian’s compensation for being partly to blame for the accident.

This is a useful case for personal injury claims which puts the lions share of blame at the motorist’s door, even when a pedestrian has made an error of judgement in crossing a road. It highlights the need for accident victims to take advice from specialist solicitors, even where they feel they may be partly to blame for the accident. As the Court of Appeal sets out very clearly here, motorists will generally be found to have high levels of blameworthiness, because of the destructive potential of a car.