Judge Walden-Smith handed down judgment this week in another useful pedestrian versus car case holding the driver primarily liable.
The claimant had been out drinking and was in the process of crossing the road when he was struck by the defendant’s car. It was accepted that the defendant had not been distracted and was driving at a prudent 20mph. She was therefore being a careful driver. So was she negligent?
It was clear that the defendant had not seen the claimant prior to colliding with him. Two accident reconstruction experts provided a joint report. It was upon this report and evidence from an eyewitness that the Judge found that the claimant had been in the road for at least six seconds before he was hit. The Judge found that the claimant must therefore have already been in the carriageway when the defendant was 20 feet away.
The Judge did not accept that there was anything preventing the claimant from being visible to the defendant. Although he was in dark clothing his face and arms were bare and were in contrast to the dark road.
Therefore the defendant ought to have seen him and taken action. Furthermore, the accident occurred at a junction and a reasonable careful driver would have been alert to the risk of people crossing the road.
In terms of contributory negligence the Judge was mindful of the well recognised factor that a car can be a dangerous weapon and therefore has greater causative potency. The fact that the claimant had been drinking was not itself a reason for finding contributory negligence. Carelessness may result from drinking but there must be a finding of carelessness in order to attribute contributory negligence. He had contributed to the accident as he possibly misjudged speed and position of the defendant’s car. However, this was not the main cause of the accident. That was the defendant’s failure to see him. The Judge therefore attributed only 30% contributory negligence to the claimant.
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