Wells v Trinder

Contributory negligence is assessed by comparing both causation and blameworthiness. There is no presumption that responsibility is equal merely because both parties contributed to an accident. The court must consider the parties’ respective opportunities to avoid the accident, the nature of their conduct, and the risks created by it. A pedestrian must maintain a proper lookout for traffic from both directions. A motorist must maintain an effective forward observation, particularly when driving at speed and controlling potentially lethal machinery. An appellate court may interfere with a finding on contributory negligence where the primary facts make the lower court’s conclusion untenable. The claimant was therefore 25 per cent responsible, reducing the defendant’s liability to 75 per cent.

This was the defendant’s appeal against a decision of His Honour Judge Simmons in the Luton County Court on liability following a road accident. The claimant, a pedestrian, was crossing the A507 between opposite bus stops when she was struck by the defendant’s car. The trial judge found the defendant solely liable and rejected contributory negligence.

The defendant challenged both primary liability and the absence of any deduction for the claimant’s conduct. The central issues were whether the defendant was solely responsible and, if not, how the parties’ respective responsibility should be apportioned.

1. Primary liability. The appeal against the finding that the defendant was negligent was rejected. The trial judge was entitled to find that the defendant drove too fast, used dipped rather than full-beam headlights when it was safe to use them, and failed to see the claimant until effective evasive action was impossible.
2. Contributory negligence. The claimant should have seen the defendant’s approaching vehicle before reaching the halfway point of the road. She should then either have waited for it to pass or accelerated to complete the crossing. The primary facts therefore required a finding that she bore some responsibility.
3. Apportionment. The assessment required attention to both causation and blameworthiness. Applying the reasoning of Baker v Willoughby [1970] AC 467 at 490, there was no presumption that responsibility was equally divided. The claimant was a pedestrian required to watch for traffic from both directions, but the defendant was driving a potentially lethal vehicle and was primarily responsible for failing to observe the road ahead.
4. The claimant was assessed as 25 per cent responsible. The appeal was allowed to that extent, reducing the defendant’s liability from 100 per cent to 75 per cent. The order below as to costs stood, and the defendant received 50 per cent of his appeal costs.

• Court of Appeal (Civil Division): allowed the appeal in part, reducing the defendant’s liability from 100 per cent to 75 per cent.
• Luton County Court: His Honour Judge Simmons had found the defendant wholly liable and had rejected contributory negligence.