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Eagle v Chambers, Court of Appeal, 24 July 2003

29 July 2003
The issues

Road traffic – pedestrian – contributory negligence.

The facts

The Claimant then aged 17 was run over by the Defendant’s car on the 22nd June 1989. The accident took place on the southbound carriageway of Marine Parade Great Yarmouth. Marine Parade is a dual carriageway with a 30mph limit, with two rows of parking spaces between the two carriageways. The southbound carriageway was divided into 2 by a broken white line. The accident took place at 11.30pm. The weather was fine. The street lighting was good. The road was virtually straight. The Claimant was seen walking in the middle of the southbound carriageway and at the time of the accident in the offside lane. Two cars had seen her and avoided her. The first had stopped further down the road and the passenger had gone back to try and persuade the Claimant to get off the road. So had another witness who had been told to Îfuck off’. The Claimant was described as being in an emotional state. The Defendant’s car hit her causing her serious injuries. The Defendant was driving at about 30-35 mph. He failed a road-side breath test but at the police station was found to be 4 micro grams below the limit although he accepted he had taken enough alcohol to impair his driving abilities. The High Court Judge found for the Claimant on the basis that had the Defendant been exercising the standard of care of a reasonable driver he would have seen the Claimant earlier and avoided her. The Judgment was subject to a finding of 60% contributory negligence. The Claimant appealed.

The decision

1. There were two aspects to apportioning responsibility between the Claimant and the Defendant namely:

a. Respective causative potency of what each party has done and

b. Their respective blameworthiness (Davies v Swan Motor Car Limited [1949] approved by the House of Lords in Fitzgerald v Lane [1989]

2. The driver’s conduct was much more causatively potent than that of the Claimant. The road was well lit and near-straight. There was little traffic and nothing to obstruct the driver’s view. The road was not an unrestricted dual carriageway but a restricted seafront road in a seaside resort in early summer. The drivers had to be on the look-out for pedestrians. The longer someone was in the road the easier it ought to be to see them especially if they were wearing light coloured clothing. Although there was evidence that the Claimant had been wandering or unsteady there was none that she had staggered or changed direction suddenly. There was nothing to prevent the driver avoiding her.

3. However the Claimant’s carelessness was also blameworthy and sufficiently blameworthy to justify a finding of contributory negligence. She had put herself at risk. She had ignored warnings from people who had tried to persuade her to come off the road.

4. However in terms of blameworthiness the driver should have known that he had had enough drink to affect his driving abilities; he was driving at a speed slightly above the maximum permitted speed on a road where he should have known that particular care should be taken to avoid pedestrians; he failed to see the Claimant until the last moment and took no action to avoid her.

5. The Judge was plainly wrong to hold the Claimant more responsible than the Defendant. The Court had consistently imposed upon drivers of cars a high burden to reflect the fact that cars were potentially dangerous weapons. The finding of 60% contributory negligence will be set aside and the finding of 40% substituted.

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