Tom Restall examines the very recent Court of Appeal judgment on pedestrian vs vehicle liability

Practitioners in this field will be well aware that drivers almost always have some liability if they injure a pedestrian. The case law often repeats the mantra that a motor vehicle is a lethal weapon, while pedestrians are fragile and vulnerable. So the driver has a ‘high duty of care’. Judges often find the driver should have driven a little slower, kept a better look out, braked sooner, etc. Extreme foolishness or intoxication by pedestrians is usually dealt with as a matter of contributory negligence. For instance, in Green v Bannister [2003] EWCA Civ 1819 the Court of Appeal upheld a trial judge’s decision to find a driver 40% liable for running over an extremely drunk pedestrian who was lying inert in the road.

However, in the very recent decision of Scott v Gavigan [2016] EWCA Civ 544 (8th June), the Court of Appeal upheld a trial judge’s unusual dismissal of a pedestrian’s claim. It was Mr Scott’s birthday and he was going to the pub. He had already been drinking and even his own witness said he was “very drunk”. He was crossing a 30mph road in Lambeth which had one lane in each direction. He was near, but not at, a crossing point which had bollards in the middle of the road. He did not look carefully to the left, and he ran diagonally towards, and into the path of, an oncoming moped driven by Mr Gavigan.

The trial judge found that Mr Gavigan should have reduced his speed from 30mph to 20mph, and that had he done so, the accident probably would have been avoided. However – and you may think, surprisingly, in light of those findings – he still dismissed the claim. He found that the risk of the pedestrian crossing the road at least 10 metres away from the pedestrian crossing was not one which Mr Gavigan should reasonably have foreseen. Mr Scott’s own recklessness had been the sole and effective cause of the accident – it was a novus actus interveniens.

Mr Scott appealed. However the Court of Appeal found that it had been open to the judge to find that it was not reasonably foreseeable Mr Scott was going to act as he did. He had given no indication of any intention to cross the road and there had been nothing to alert Mr Gavigan to his drunken state. While in one sense any sort of foolishness is foreseeable, it was not incumbent on the driver to take steps to avert a risk of which he neither was nor should have been aware. Bearing this in mind, and in all the circumstances, the judge had fallen into error by finding that Mr Gavigan should have reduced his speed to 20mph. The judge’s finding of negligence had been at variance with his finding of a want of foreseeability. Thus the appeal had to be dismissed.

On the issue of novus actus, the Court of Appeal had “considerable doubt” as to whether the judge’s finding was open to him. It would need “extreme circumstances” to deny a claimant any remedy when he or she has surmounted the hurdles of foreseeability, negligence and causation. Drivers owe a duty to take care not to injure even the foolish. Helpfully, the Court of Appeal suggested that what might qualify as “extreme circumstances” would be a group of youth goading one another to run as close as possible to oncoming traffic.

In many ways the Court of Appeal’s judgment can be considered a conventional approach to the tort of negligence, focusing on what the driver should have foreseen, and discouraging the application of the perhaps over-quoted doctrine of novus actus. On the other hand, it could be thought that this judgment reflects a more sympathetic approach to drivers, bearing in mind that Mr Gavigan was driving right at the speed limit, approaching a pedestrian crossing, and the pedestrian came from the far side of the road.