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LTL 18/5/2011,(2011) RTR 27, Queen's Bench Division - Paul Rose QC
Contributory negligence was assessed at 40 per cent in the case of a claimant who had been hit by a bus when he had walked, very drunk, onto the carriageway of a dark, unlit, country road in order to flag it down.
In a claim for damages for personal injuries brought by the claimant (L) against the defendant (G), the court was required to determine the issue of contributory negligence. L had been hit by a bus owned by G and driven by one of its employees (K) in the course of his employment. The bus had been travelling at around 25mph on a dark, unlit country lane which had a footpath on only one side and a speed limit of 50mph. It had been travelling with dipped headlights. L, who was very drunk, had walked into the carriageway in order to flag down the bus. In the seconds before the accident K had taken his hand off the steering wheel, switched on the cabin light and had consulted his timetable. He did not see L in the road until it was too late to avoid a collision. G admitted primary liability but argued that L should be found to be 70 per cent responsible.
HELD: If a claimant acted in a careless way by reason of his having consumed alcohol, that careless conduct could give rise to an allegation of contributory negligence. However, it was important to distinguish that from the mere fact of his being under the influence of alcohol. Thus, it was necessary to look at L's act of walking into the carriageway rather than the drunken state in which it had been done, Lunt v Khelifa (2002) EWCA Civ 801 followed. L had walked diagonally into the road and tried to flag down the bus. It was dark and his judgement of speeds and conditions was very substantially impaired by drink. That was an act of significant carelessness. Nevertheless, a fully observant driver in K's position would have been able to avoid colliding with a drunken pedestrian who stepped into his path. Given that there was no footpath and there was a bus stop ahead, a careful bus driver would have anticipated the prospect of pedestrians at or near the edge of the carriageway. K's decision to read a timetable while driving prevented him from keeping a lookout and his action was not dissimilar to answering a mobile phone, opening a drink or changing a radio station. For about four seconds he did not see that there was something in the road, and he did not recognise that thing as a person for a further two seconds. He had clearly been negligent and had to take significant responsibility for what had happened. Moreover, he had been negligent in using dipped headlights rather than main beam. L's case was not one of those rare ones identified by Hale L.J. in Eagle v Chambers (No1) (2003) EWCA Civ 1107, (2004) RTR 9 in which the pedestrian was to be held more responsible than the driver, Eagle considered. While respecting the view that earlier decisions on different facts could only provide very limited assistance, it was to be borne in mind that in Lunt it was considered that the trial judge may well have been generous in assessing the liability of the drunken pedestrian as one third. The proper apportionment of responsibility was 60 per cent to G and 40 per cent to L. The proper reduction in the damages recoverable by L was therefore 40 per cent (see paras 32-33, 38-42, 49-51 of judgment).