Scott v Gavigan

In a road-traffic negligence claim, a driver is not required to anticipate every foolish act by a pedestrian. The relevant question is whether, in the circumstances, the particular risk that materialised was one that the reasonably acting driver ought to have foreseen. A pedestrian who gives no indication of intending to cross, passes an obvious crossing point and then suddenly runs into the vehicle’s path may create an unforeseeable risk. A finding that the driver should have reduced speed earlier is unsustainable if it conflicts with that conclusion. Obiter, denying all recovery for a claimant’s conduct as a novus actus interveniens requires pretty exceptional circumstances; the boundary between that doctrine and contributory negligence is fact-sensitive.

The claimant was injured when he ran across Valley Road into the path of a moped ridden by the defendant. The County Court at Central London found that the claimant was heavily intoxicated, had passed an informal pedestrian crossing and had run into the defendant’s path. It found that the defendant should have been travelling more slowly, but held the claimant wholly responsible because his conduct was the sole effective cause and constituted a novus actus interveniens.

The claimant appealed on liability only. The appeal concerned foreseeability, the sustainability of the finding of negligence, causation, and whether the claimant’s conduct broke the chain of causation.

1. Appeal dismissed. The Court of Appeal upheld the result, although it considered that parts of the recorder’s reasoning could not stand.
2. Foreseeability. The question was not whether some form of foolishness was foreseeable in the abstract. It was whether this defendant, acting reasonably, ought to have foreseen the particular event which occurred, so that the claimant was within the class of persons likely to be affected by the alleged failure to take care. The claimant had passed the obvious crossing point, continued along the pavement and gave no indication that he intended to cross. The recorder was entitled to find that the claimant’s sudden decision to run across the road, when the moped was about 10 metres away, was an egregious folly rather than a commonplace risk. That finding was sufficient to uphold the judgment.
3. Speed and negligence. The alternative finding that the defendant was negligent because he had not braked earlier was unsustainable. Rule 124 of the Highway Code was irrelevant because the defendant was not exceeding the speed limit. Rules 125 and 126 did not require a lower speed on these facts because the crossing was unoccupied, no pedestrian was intending or likely to cross, and the defendant was travelling within the distance he could see to be clear. The position might have differed if pedestrians had been on the defendant’s side of the road or if he ought to have foreseen the claimant rushing out.
4. Causation. It was open to the recorder to find that the collision would have been avoided if the defendant had been travelling at 20 mph rather than 30 mph.
5. Novus actus interveniens. The court’s further observations were obiter because the appeal was already disposed of on foreseeability. The authorities, including Spencer v Wincanton Holdings Ltd [2009] EWCA Civ 1404 and McKew v Holland and Hannen and Cubitts (Scotland) Ltd [1969] 3 All ER 1621, showed that the issue is fact-sensitive and not capable of precise definition. Recklessness is not a necessary precondition, although established recklessness may suffice. Denying all recovery after foreseeability, negligence and causation have been established requires pretty exceptional circumstances. Ordinary cases of pedestrians running into the road will generally be dealt with through contributory negligence. The court did not decide whether the claimant’s conduct met the threshold, and no apportionment arose.

1. Court of Appeal (Civil Division) On 8 June 2016, the court dismissed the appeal on liability: [2016] EWCA Civ 544.
2. County Court at Central London Mr Recorder Hollington QC found that the defendant should have been travelling more slowly but held the claimant wholly responsible for the accident.