Eagle v Garth Maynard Chambers

Under section 1(1) of the Law Reform (Contributory Negligence) Act 1945, a court must make a just and equitable comparison of the claimant’s and defendant’s respective responsibility for the damage. The assessment has two aspects: causative potency and blameworthiness. It is not enough that the claimant’s conduct was a factual, “but for” cause of the accident.

An appellate court will usually respect an apportionment made at trial. It may intervene where the trial judge wrongly finds a pedestrian more responsible than a driver, particularly where the pedestrian was visible for some time and the driver could have avoided the collision. Drivers bear a high burden because a car is a potentially dangerous weapon.

The claimant pedestrian was seriously injured when the defendant’s car struck her on a well-lit seafront road. She had been walking in the carriageway while upset and emotional, and had ignored warnings to leave the road. The defendant had consumed alcohol, was driving at about 30 to 35 mph, and failed to see or avoid her until the last moment.

Moses J, sitting in the Queen’s Bench Division, found the defendant negligent but reduced damages by 60% for the claimant’s contributory negligence. The claimant accepted some responsibility but appealed the apportionment. The central issue was whether she could properly be held more responsible than the driver for the damage.

1. Appeal allowed. The court substituted a finding of 40% contributory negligence for the trial judge’s finding of 60%.

2. Section 1(1) of the Law Reform (Contributory Negligence) Act 1945 requires a just and equitable assessment of the claimant’s share in responsibility for the damage. Since both parties are at fault, that exercise necessarily compares their respective responsibility. The relevant considerations are their respective causative potency and blameworthiness, as stated in Davies v Swan Motor Co Ltd [1949] 2 KB 291, approved in Fitzgerald v Lane [1989] AC 328.

3. The driver’s conduct was markedly more causatively potent. The claimant was visible on a wide, near-straight and well-lit road. There was no obstruction to the driver’s view, and he could have avoided her as other drivers had done. The setting called for particular vigilance for pedestrians, and the driver had consumed sufficient alcohol to impair his driving ability. “But for” causation alone does not establish contributory negligence.

4. The claimant nevertheless acted carelessly and blameworthily by remaining in the carriageway, failing to keep a proper lookout and ignoring warnings. Those matters justified a substantial reduction. They did not justify treating her as more responsible than the driver. It is rare for a pedestrian to bear the greater responsibility unless the pedestrian suddenly moves into the path of an oncoming vehicle; that had not occurred. The court applied the high burden imposed on drivers because a car is a potentially dangerous weapon, as explained in Lunt v Khelifa [2002] EWCA Civ 801.

5. The judge’s assessment was therefore plainly wrong in its qualitative conclusion that the claimant bore the larger share. The defendant’s liability was maintained, subject to a 40% reduction in damages for contributory negligence. The appeal was allowed with costs on the indemnity basis.

• Court of Appeal (Civil Division) Allowed the claimant’s appeal and varied the order by reducing her contributory negligence from 60% to 40%.

• High Court, Queen’s Bench Division, Norwich District Registry Moses J gave judgment for the claimant on 19 November 2002, subject to 60% contributory negligence.