Bright v Bourn

Contributory negligence requires proof that the claimant failed to take reasonable care for his own safety and that the failure contributed to the damage. A claimant’s disability does not automatically reduce the applicable standard of care. In apportioning responsibility, the court must assess both parties’ blameworthiness and the causative potency of their respective failings. Where a pedestrian and a motorcyclist are involved, the court must also recognise the potentially greater danger created by the vehicle and the corresponding high burden on the driver. A pedestrian may nevertheless bear some responsibility for failing to keep a proper lookout while crossing. The claimant’s responsibility was assessed at 15 per cent.

The claimant suffered serious brain injury when struck by the defendant’s motorcycle while crossing a road. Liability for the accident had already been established, leaving contributory negligence as the preliminary issue.

The claimant had no memory of the accident. The court resolved conflicting evidence about the position of a parked delivery van, the claimant’s movements and the defendant’s opportunity to see and avoid him. The central question was whether the claimant failed to take reasonable care for his own safety and, if so, what reduction in damages was just and equitable.

1. Contributory negligence. The burden lay on the defendant to prove both that the claimant failed to take ordinary care for himself and that the failure contributed to the accident, applying Flower v Ebbw Vale Steel [1936] AC 206 and Lewis v Denye [1939] 1 KB 540.
2. Under section 1(1) of the Law Reform (Contributory Negligence) Act 1945, any reduction had to be just and equitable having regard to the claimant’s share in responsibility. The claimant was judged by the standard of the reasonable person. His disability did not diminish that duty: Dunnage v Randall [2015] EWCA Civ 673; Davis v Swan Motor Co [1949] 2 KB 291.
3. The claimant should have kept a proper lookout while crossing, particularly after reaching the centre line, when the motorcycle should have been visible. That failure was a contributory cause. The defendant, however, had ample opportunity to see the claimant and avoid the collision, was travelling at or above the speed limit, and showed insufficient appreciation that the limit was a maximum rather than a target.
4. In assessing the proportions, the court considered the parties’ relative blameworthiness and causative potency. It also took account of the destructive disparity between a pedestrian and a motorcyclist, and the high burden ordinarily placed on drivers because of the danger posed by vehicles, as explained in Eagle v Chambers [2004] RTR 9. The suggested 75:25 apportionment in Baker v Willoughby [1970] AC 467 was treated as guidance only; each case turns on its facts.
5. The claimant’s responsibility was assessed at 15 per cent. Judgment therefore remained in the claimant’s favour subject to that reduction.