Lunt v Khelifa

In apportioning responsibility for a road accident, a pedestrian who has consumed alcohol is judged by the conduct that caused the danger. Intoxication may explain that conduct but does not itself make it more dangerous or increase blameworthiness.

An appellate court will interfere with an apportionment only where the trial judge has plainly gone wrong. That restraint applies even where the trial judge decided the case on written evidence. A motorist bears a high responsibility because a motor car is potentially lethal, but a pedestrian who steps into the path of a close vehicle may also bear substantial responsibility.

The claimant pedestrian was struck by the defendant's car at a London junction where the traffic and pedestrian signals were not working. The claimant had walked from a central refuge into the defendant's carriageway. He had consumed a substantial amount of alcohol. The defendant, driving at about 25 mph, did not see him or brake before impact.

His Honour Judge Bentley QC, sitting as a deputy High Court judge in the Queen's Bench Division, held the defendant two-thirds responsible and the claimant one-third responsible for contributory negligence. The claimant appealed, seeking a lower share, and the defendant cross-appealed, seeking a higher share. The central issue was whether the apportionment was plainly wrong, including whether the claimant's alcohol consumption increased his blameworthiness.

1. Appeal and cross-appeal dismissed. Lord Justice Latham gave the principal judgment. Mr Justice Hart agreed, and Lord Justice Brooke agreed with Lord Justice Latham's reasons.
2. A pedestrian's alcohol consumption may explain why he acted dangerously, but apportionment turns on what he did. It does not make the conduct more or less dangerous, and does not of itself increase or reduce blameworthiness. The court applied the approach in Liddell v Middleton (1996) PIQR P36.
3. The claimant created a dangerous situation by walking into the carriageway when the vehicle was close. He therefore bore a substantial share of responsibility. The defendant nevertheless failed to keep the sharp lookout required near a tube-station junction with inoperative traffic signals. A driver bears a high burden because a motor car is potentially lethal.
4. The Court of Appeal would alter an apportionment only if the trial judge had plainly gone wrong. The one-third/two-thirds allocation was open to the judge. The usual appellate restraint applied although the trial judge had heard no oral evidence and decided the case on paper.
5. The formal order was that the appeal and cross-appeal be dismissed, with no order for costs save detailed assessment of the claimant's Community Legal Services funding.

• Court of Appeal (Civil Division): Appeal and cross-appeal dismissed in Lunt v Khelifa [2002] EWCA Civ 801 .
• High Court, Queen's Bench Division: His Honour Judge Bentley QC, sitting as a deputy High Court judge, held the driver two-thirds and the pedestrian one-third responsible for the accident.