The cases Belka v Prosperini [2011] EWCA Civ
623 and Woodham v Turner [2011] EWHC 1588
The issue
In these cases, the courts were required to address the issue of
contributory negligence in road traffic accidents. Both decisions
apportioned liability on a split basis.
The facts
The facts and circumstances surrounding both accidents are
fairly commonplace. In the Belka case, the
appellant/claimant was injured when hit by a taxi driven by the
respondent/defendant. Following a trial on the issue of liability,
the judge held that the claimant was two thirds to blame for the
accident and that the defendant was one third to blame. The
claimant appealed the decision to the Court of Appeal.
Woodham was a negligence case following a collision
between a motorcycle and a bus. The bus was emerging from a minor
road onto a major road, and was obliged to give way to traffic
moving from both directions on that road. The bus emerged at an
angle that significantly reduced the driver's ability to see
traffic on the far side of an obstructing tractor. It then advanced
beyond the driver's sight line, creating a real risk of collision
with an oncoming and overtaking motorcyclist, however slowly such a
motorcyclist might have been travelling.
The decisions
In Belka, the Court of Appeal did not interfere with
the decision at the original trial. It held that the fault of the
respondent was not to ease off on the accelerator in anticipation
of the risk that the pedestrian whom he had seen, or ought to have
seen, might decide to cross the road in an untoward way. The
greater fault of the appellant was to take a deliberate risk of an
accident in running across the road in front of the taxi which had
right of way.
In Woodham, the High Court held that the bus driver
should bear 70 per cent of the liability for the collision, and the
claimant 30 per cent. The court acknowledged that, while the
defendant was emerging very slowly and was looking as best she
could to right and left, it was not sufficient in the
circumstances. It also held that the claimant's lack of due heed
for his own safety made him substantially responsible for the
collision, because the risk of a vehicle emerging from the side
road, even at low speed, was obvious and foreseeable to any careful
motorcyclist.
David Di Paola
The interesting decision of the Court of Appeal in the
Belka case addresses an issue which insurers and
solicitors often come across in road traffic claims. In short, it
suggests that the greater duty of care rests with the pedestrian.
While there is an obvious duty on motorists to drive carefully and
pay due care and attention to the road, there is a greater duty on
pedestrians to ensure it is safe to cross the road when the
motorist has the right of way, and that pedestrians should not take
"deliberate risks" to run across a road when it is not safe to do
so.
This decision is likely to be of assistance to insurers and
practitioners when dealing with the not uncommon scenario of
pedestrians (often children) who have run across roads when the
traffic signal shows green for the motorist.
In the case of Woodham, the High Court highlighted in
its decision that while there is usually a greater duty on vehicles
emerging from minor roads onto major roads to make sure it is safe
to do so, there also is a duty on motorists proceeding along major
roads to keep an eye out for vehicles emerging from minor roads,
even if those vehicles are moving at a very slow speed.
The judge apportioned liability on a 70/30 basis with the bus
driver emerging from the minor road onto the major road bearing the
greater share. Although in future cases a judge or sheriff will
surely take the specific facts and circumstances into consideration
before apportioning liability, the decision in Woodham is
certainly a helpful one.