Contributory Negligence ClaimAug 28, 2019
How a Pedestrian could Potentially be found Contributory Negligent in Road Traffic Claims because of what he was wearing and his alcoholic state.
In the recent case of Lee Edmunds v Motor Insurers’ Bureau, it was argued by the Defendant that the Claimant was 50% liable towards his injuries because he was wearing flip flops, dark clothing and he had drunk 6 pints of beer on the night of the accident. This case asks the question whether choice of clothing and drunkenness could potentially make a Claimant partially liable for their injuries in a Road Traffic Claim.
In this case, the Claimant was a pedestrian who was struck by a car, which drove off and was untraced. The Claimant perused a claim for damages against the Motor Insurers’ Bureau under the Untraced Drivers Agreement 2017.
On the afternoon before the accident, the Claimant had left his home to watch the World Cup Quarter Finals, where England were playing Sweden. The Claimant was wearing a dark blue top with shorts and flip-flops. Over the 8 hours that the Claimant was out, he said that he drank approximately 6 pints of beer and ate a burger. The Claimant said he got a taxi home, which dropped him approximately 200 meters from his house. The Claimant got out of the taxi and crossed the road between two parked cars. When the Claimant was in the middle of the road, he saw the headlights of a car driving down the road and began to run to the other side of the road. As the Claimant ran, his flip-flop broke in half, causing his left leg to trail behind. His left leg was struck by the front wheel of the car. This caused the Claimant to spin around onto his back and in doing so his right leg was struck by the back wheel of the car. The Claimant was then dragged approximately 5 meters down the road. The car did not stop.
The Claimant dragged himself home and went to bed. The next morning, he took himself to hospital, where he remained for 3 days. The Defendant claimed that the Claimant was contributory negligent towards his injuries because his clothing was dark, he was wearing flip-flops and he had been drinking that evening. They claimed that the Claimant either stumbled because of the quality of his flip-flops or because he was drunk.
On the point of the Claimant wearing dark clothing, the Defendant argued this would make it more difficult to see the Claimant and this makes him partially liable for his injuries. The General Guidance to Pedestrians within the Highway Code at Rule 3 states pedestrians should wear light coloured, bright or fluorescent clothing in poor daylight conditions. However, the arbitrator in this case said that there are probably few, if any, pedestrians who follow this guidance. The car with headlights would have at least seen his outline and should not have driven so fast on a road where cars are parked on either side.
The arbitrator in this case said that the fact the Claimant’s flip-flop’s broke was due to the driver of the car, which made the Claimant run and stumble and it was not due to the flip-flops themselves. If the car had slowed down, the Claimant may not have needed to run.
The Defendant argued that the Claimant was clearly intoxicated, and this caused him to stumble, otherwise he would have felt the severity of his injuries and call an ambulance or the police immediately afterwards. The arbitrator in this case referred to the case of CC v TD where the High Court held a Claimant’s actions are to be judged against the sober person.
The arbitrator also cited the case of Liddell v Middleton when Stuart-Smith LJ said “it is not the fact that a [Claimant] has consumed too much alcohol that matters, it is what he does. If he steps in front of a car travelling at 30 mph at a time when the driver has no opportunity to avoid an accident, that is a very dangerous and unwise thing to do. The explanation of his conduct may be that he was drunk: but the fact of drunkenness does not, in my judgment, make the conduct any more or less dangerous and it does not in these circumstances increase the blameworthiness of it”.
Therefore, it needs to be looked whether the Claimant’s conduct was to that of a sober person and not just whether they drank alcohol or not. In this case no evidence was found to show that the Claimant stumbled due to his intoxication levels.
The Claimant was not found to be liable towards his injuries. Choosing to wear flip-flops may not be the best practical idea, but it was not the Claimant’s choice to wear them that caused him to stumble and be hit by the car. Drunkenness is a factor to consider and can affect judgement, but the Claimant in this case was not found to make an unreasonable judgement nor did it increase the blameworthiness of his actions.
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