Sabir v Osei-Kwabena

Apportionment of contributory negligence is an evaluative judgment. An appellate court may interfere only where the first-instance judge considered an irrelevant matter, failed to consider a relevant matter, or reached an assessment that was not reasonably open. Under the Law Reform (Contributory Negligence) Act 1945, responsibility is assessed by comparing causal potency and blameworthiness. A car’s destructive potential may inform both aspects. A pedestrian’s deliberate decision to move suddenly into an oncoming vehicle’s path may justify a much greater share of responsibility. A small misjudgement does not have that character where the driver had a clear view and ample time to avoid the collision.

The claimant was struck while crossing a busy suburban road by a car driven by the defendant and suffered catastrophic injuries. The trial judge found both parties at fault and reduced the claimant’s damages by 25% for contributory negligence. The defendant appealed, arguing that the claimant’s share should have been 50% or close to it. The Court of Appeal considered the proper appellate approach to apportionment, the relative causal potency and blameworthiness of pedestrian and driver, and comparisons with earlier pedestrian-road cases.

1. The appeal was dismissed. Lord Justice Tomlinson gave the judgment, with Lord Justice Lindblom and Lady Justice Arden agreeing.

2. The Court applied the guidance in Jackson v Murray [2015] UKSC 5. Apportionment involves an evaluative judgment in which there is rarely one demonstrably correct answer. An appellate court should interfere only where the judge considered an irrelevant matter, failed to consider a relevant matter, or reached an assessment that was not reasonably open.

3. Section 1(1) of the Law Reform (Contributory Negligence) Act 1945 requires damages to be reduced to the extent that is just and equitable, having regard to the claimant’s share in responsibility for the damage. The relevant evaluation has two aspects: the parties’ respective causative potency and their respective blameworthiness. The destructive potential of a car may inform both aspects.

4. A driver’s failure to keep a proper lookout on a busy suburban road, while driving at the maximum permitted speed, had substantially greater causal potency and blameworthiness than the claimant’s slight misjudgement. The claimant did not create a situation of urgency or place the defendant in danger. The defendant had a clear view of her and should have seen her in sufficient time to avoid the collision simply by taking his foot off the accelerator.

5. The court distinguished deliberate risk-taking, illustrated by Belka v Prosperini [2011] EWCA Civ 623, from an ordinary crossing involving a narrow misjudgement. The decided cases supplied general principles but did not prescribe a fixed percentage, and none was directly comparable. The 25% assessment was squarely within the range of reasonable decision-making, so the Court of Appeal declined to interfere.

• Court of Appeal (Civil Division) — dismissed the defendant’s appeal against the 25% reduction for contributory negligence.
• High Court of Justice, Queen’s Bench Division — His Honour Judge William Davis QC, sitting as a High Court judge, assessed the claimant’s responsibility at 25%.