Belka v Prosperini

Under section 1 of the Law Reform (Contributory Negligence) Act 1945, apportionment requires a broad assessment of both comparative blameworthiness and the relative causal importance of each party’s conduct. The greater destructive capacity of a vehicle is relevant to blameworthiness, but does not prevent a pedestrian bearing the larger share of responsibility.

A pedestrian who deliberately runs across the path of an approaching vehicle with priority may properly be found substantially more blameworthy. That conduct may also be the more immediate cause of the accident, even where the driver failed to keep a proper lookout and should have reduced speed as a precaution.

The claimant pedestrian was struck by the defendant’s taxi while crossing an unregulated dual carriageway at night. The county court found that the driver should have seen the claimant and his companion at a central refuge, and should have eased off the accelerator. It also found that the claimant deliberately ran across the road in front of the approaching taxi, which had priority.

HHJ Walton apportioned liability two thirds to the claimant and one third to the driver. The claimant appealed, without challenging the primary findings of fact. The central issue was whether that apportionment gave insufficient weight to the driver’s blameworthiness and causative potency.

1. Appeal dismissed unanimously. The Court upheld the county court’s apportionment of two thirds responsibility to the claimant and one third to the driver.

2. Section 1 of the Law Reform (Contributory Negligence) Act 1945 requires a just and equitable reduction reflecting the claimant’s share in responsibility. The assessment is broad. It requires consideration both of comparative blameworthiness and of the relative importance of the parties’ acts in causing the damage. The Court applied the explanation of causative potency in Stapley v Gypsum Mines [1953] AC 663.

3. The driver was at fault because he should have seen both pedestrians at the refuge and, even on his own account, should have eased off the accelerator against the possibility of an untoward movement. A better lookout and slight reduction of speed would have avoided the collision.

4. However, the claimant deliberately took the risk of running in front of a taxi which had priority. He was therefore far more blameworthy. Applying the qualification identified in Eagle v Chambers [2003] EWCA Civ 1107, this was a rare case in which a pedestrian could properly bear greater responsibility because he suddenly moved into the path of an oncoming vehicle.

5. The judge was entitled to regard the parties’ causative potency as equal. Unlike Eagle, this was not a case in which the driver would have failed to see and avoid an unobjectionable pedestrian. It was difficult to envisage the collision occurring if the claimant had crossed non-negligently rather than running into the taxi’s path. Although the judge’s reference to the collision was open to criticism, the apportionment was not plainly wrong.

• Court of Appeal (Civil Division) — dismissed the claimant’s appeal and upheld the two thirds to one third apportionment against the claimant.

• Newcastle upon Tyne County Court (HHJ Walton) — after a liability trial, found the claimant two thirds responsible and the defendant taxi driver one third responsible for the accident.