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Published 16 March 2021
In Sabir v Osei-Kwabena  EWCA Civ 1213, Lord Justice Tomlinson said:
"[…] there are two aspects to apportioning liability between the claimant and defendant, namely the respective causative potency of what they have done, and their respective blameworthiness. So far as concerns the former, because a car can usually do much more damage to a person than a person can do to a car, the court imposes upon drivers what Latham LJ in Lunt described as a "high burden."
It is this concept of causative potency in accidents involving vehicles and pedestrians that has had the result that there is often an air of inevitability surrounding the likely outcome, with the courts expected to focus on little more than the degree of contributory negligence that the court is going to ascribe to the pedestrian. It can appear that the courts are simply not prepared to consider motorists blameless because of the “high burden” to which Tomlinson LJ referred, particularly when the pedestrian is crossing the road at or near a designated crossing.
However, in the case of Vincent v Walker  EWHC 536 (QB), DAC Beachcroft with Caroline Hall, instructed by Mike Green at Zurich Insurance on behalf of the defendant driver successfully defended a claim brought by an injured pedestrian. Represented at the trial, which was held remotely, by Charles Woodhouse of Old Square Chambers a judgment was obtained which absolved the defendant driver of all liability.
The accident took place in the dark after the claimant stepped off a staggered, toucan crossing with a central refuge which was controlled by automated traffic lights, into the path of the defendant. The road in question was a single carriageway road with a speed limit of 50 mph. The claimant admitted that he had not pressed the button to activate the traffic lights and nor had he looked to see if traffic was approaching before stepping into the carriageway. As it was conceded that the claimant, Mr Vincent, had been contributorily negligent, the judge identified two issues that he had to consider:
Both sides called expert accident reconstruction evidence and Mr Walker gave evidence on his own behalf. Mr Vincent had no recollection of the accident. There was an independent witness who had been driving in the opposite direction.
The judge, David Pittaway QC undertook a thorough and careful examination of all the evidence before him, weighing the relative strengths of the parties expert and lay evidence. The judge said that “Mr Walker impressed me as a careful and thoughtful witness who was not prepared to overstate his case or, as he said, have words put in his mouth”. The judge accepted that all the evidence showed that Mr Walker had, in the immediate aftermath of the accident, over-estimated his speed at the time of impact when questioned by the police and that he had no reason to doubt his evidence that, as would have been his usual practice, he probably eased his foot off the accelerator as he approached the automated pedestrian crossing.
The judge found, as a matter of fact, that Mr Walker had been travelling at a speed of 39 to 41 mph as he approached the pedestrian crossing and that this had not been excessive and that the speed limit of 50mph reflects the nature of the road, it being a ring road, not in the middle of a residential area, surrounded by houses, shops or schools, and had housing estates on one side and fields on the other.
Having considered the evidence the judge was not satisfied that Mr Vincent would have been visible to Mr Walker before he reached the central refuge and that if Mr Walker had scanned the central refuge as he approached the junction he doubted that the presence of Mr Vincent in that position would have registered. Even if Mr Walker had seen Mr Vincent the accident could not reasonably have been avoided.
The judge also accepted the evidence of the independent witness who said of Mr Vincent "he just walked out in front of Mr Walker's car." The following quotes from the penultimate paragraph of the judgment make clear what the judge had decided:
“….I find that Mr Walker did not drive at an excessive speed or fail to scan the road adequately as he approached the pedestrian crossing.”
“I am satisfied that this case falls into the category of cases where Mr Vincent chose to take the risk to walk into the road without looking to see if there were any vehicles approaching.”
The dismissal of the claim shows that it remains possible in accidents between a vehicle and a pedestrian on a designated crossing for the driver to be absolved of all liability: a pedestrian simply cannot walk into the road, even from a crossing, without taking appropriate care and expect the court to find in whole or in part in their favour.
The judgment vindicates the decision of the defendant insurer, advised by DAC Beachcroft, to support the insured and their version of events notwithstanding that the trend in claims involving pedestrians might lead to the view that the odds would be stacked against the driver. The moral is to pick the right cases to fight, marshal the evidence and present a clear and well-argued case to the court and success can be achieved.
Commenting on the decision, Tracey Pike Head of Large Loss Injury, Zurich Insurance said “we welcome the decision reached by the Court following careful consideration of the evidence and are pleased that the Court has recognised that not all pedestrian cases are the result of driver negligence.“
For DAC Beachcroft, Caroline Hall commented that “we are really pleased with the result which justified Zurich’s backing of Mr Walker and our thanks too must go to Charles Woodhouse of Counsel for his clear and convincing presentation of our clients case at the trial”.
Our complex injury team deals with cases such as this on a regular basis. For more information or advice, please contact one of our experts.
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