Podesta v Akhtar & Anor

A driver must exercise the care reasonably expected in the circumstances, assessed without hindsight or a counsel of perfection. A pedestrian visible on a central traffic island near a crossing may be an identifiable hazard before entering the carriageway, particularly where the circumstances indicate that the pedestrian is completing a crossing. The driver must keep a proper lookout, anticipate the risk of movement into the road and take reasonable avoiding action.

Contributory negligence is assessed by considering both causative potency and blameworthiness. The destructive disparity between a vehicle and a pedestrian is relevant. A pedestrian who walks into the road while attempting an ordinary crossing is not necessarily more responsible than the driver, even where the pedestrian should have seen the vehicle.

The claimant was struck by the first defendant’s car while crossing Aldwych in the early hours of 19 December 2015. Liability and causation were tried as preliminary issues. The claimant had crossed one carriageway and was standing on a central traffic island before moving into the eastern carriageway. The driver maintained that he did not see her until impact.

The court considered CCTV evidence, witness evidence and expert accident-reconstruction evidence. It determined whether the driver had failed to meet the reasonable-driver standard, whether that failure caused the collision, and the appropriate reduction for the claimant’s admitted contributory negligence.

1. Liability and causation. The claim succeeded on the preliminary issues. The driver had an unobstructed view of the claimant standing on the central traffic island for about 5.85 seconds before impact. She was close to a designated crossing point and was plainly in the process of crossing the road. A reasonable driver should have identified her as a potential hazard and anticipated that she might enter the carriageway.
2. The driver failed to keep a proper lookout, failed to identify the claimant as a hazard, failed to monitor her movement and failed to take reasonable avoiding action. The evidence showed that, if he had reacted when she began moving, he had sufficient time to brake and stop. His breaches caused the collision.
3. The court rejected the submission that the claimant became a hazard only when she crossed the kerb or entered the nearside lane. Even on that alternative analysis, the available reaction time was materially longer than the accepted perception-response period. No counsel of perfection was imposed.
4. Contributory negligence. The claimant should have seen the approaching vehicle and should not have stepped into the carriageway. Her share of responsibility was assessed under section 1(1) of the Law Reform (Contributory Negligence) Act 1945. The court applied the approach in Eagle v Chambers, considering causative potency and blameworthiness, including the disparity between a vehicle and a pedestrian.
5. The case was materially different from Stewart v Glaze. The claimant did not run or charge inexplicably into the road; she attempted to complete an ordinary crossing. Her contribution was therefore fixed at 30 per cent.