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Belka v Prosperini, Court of Appeal, 26 May 2011

6 June 2011
The issues

Causation – contributory negligence – road traffic – pedestrian stepping into path of oncoming vehicle.

The facts

The Claimant was injured when hit by a taxi driven by the Defendant. It came to Trial on the issue of liability. The Claimant was struck by the front of the taxi and thrown onto its bonnet, breaking the windscreen.

The accident happened in the early hours of the morning whilst the Claimant was on an unregulated crossing on a dual carriageway in Newcastle upon Tyne. Pedestrians could cross at this point but they did not have precedence over vehicles.

The Claimant was dressed in denim and was on his way home with a Mr Lannick. They had been to a pub and had drunk about four pints of beer. When tested for alcohol, the driver’s reading was below zero. Just before the accident the Defendant’s speed was about 25 – 30 mph and within the speed limit. The Claimant and Mr Lannick had crossed the two lanes of the road and had reached the refuge half way across. The Judge found that the Defendant should have seen the two men on the refuge when he was at least 30 meters away. It appeared that Mr Lannick had deliberately waited for the taxi to pass, whereas the Claimant had decided to run across the road. The Defendant said that he only saw Mr Lannick on the refuge and saw the Claimant at the last moment in a position on the off-side front of his car. Although he braked and swerved to the right he could not avoid a collision.

The Judge at first instance found that the Defendant should have seen both men whilst they were on the refuge and should at least have taken his foot off of the accelerator as a precaution. The Judge found the Claimant two-thirds to blame and the Defendant one-third.

The Claimant Appealed.

The decision

The Court had to deal with the question of causative potency. What was just and equitable had to have regard to the blameworthiness of each party but a Claimant’s share in the responsibility for the damage, following Lord Reid in Stapley v Gypsum Mines, could not be assessed without considering the relative importance of his acts in causing the damage apart from his blameworthiness. The Claimant argued that the Judge had failed to take into account the fact that the Defendant was driving a dangerous weapon, namely a car, following Blunt v Khelifa and Eagle v Chambers. In particular in that case, Lady Justice Hale had commented that the potential destructive disparity between a pedestrian and a car driver could readily be taken into account as an aspect of blameworthiness and that it would be rare for a pedestrian to be found more responsible than a driver unless the pedestrian had suddenly moved into the path of an oncoming vehicle. This was such a case.

The Judge had found, in terms of causative potency, that the apportionment was equal in the sense that both the action of the pedestrian and the driver’s failures contributed equally to the collision. As to blameworthiness, in the view of the Court of Appeal, the Claimant was far more to blame than the Defendant. The Defendant’s fault was not to ease off the accelerator in anticipation of the risk that a pedestrian might decide to cross the road in an untoward way. The Claimant on the other hand had taken a deliberate risk. The Judge’s assessment was not plainly wrong.

Appeal dismissed.

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