Negligence - contributory negligence - finding of 60% contributory negligence by pedestrian struck by car driver unsustainable

Eagle (by her litigation friend, E E Giles) v Chambers: CA (Lords Justice Ward, Waller and Lady Justice Hale): 24 July 2003

The accident happened at night during summer in a busy holiday town.

The claimant, a young girl who was emotionally upset, was walking unsteadily in the centre of a dual carriageway in a built up area.

A number of drivers had avoided her, some trying unsuccessfully to get her to return to the pavement.

The defendant, travelling at some 35 mph and admitting his driving ability to be impaired by alcohol, struck her, causing her severe injury.

The judge, in assessing damages, apportioned 60% contributory negligence to the claimant.

The claimant appealed.

Nicholas Leviseur (instructed by Chamberlins, Great Yarmouth) for the claimant; Toby Hooper QC and Timothy Petts (instructed by Co-operative Insurance, Legal Services Department, Manchester) for the defendant.

Held, allowing the appeal by substituting an apportionment of 40% contributory negligence to the claimant, that section 1 of the Law Reform (Contributory Negligence) Act 1945, required the court to consider the claimant's share in the responsibility for the accident on a 'just and equitable' basis; that the court should be reluctant to interfere with a judge's apportionment of blame; that, however, it would be rare for a pedestrian to be found more responsible for his injuries than the driver unless the pedestrian had suddenly moved into the path of the oncoming vehicle; and that the high burden that the court imposed on drivers to reflect the fact that a car was a potentially dangerous weapon required a decision that in the judge's apportionment of blame, holding the claimant more responsible for her injuries than the defendant, was plainly wrong.