Case: Sabir v Osei-Kwabena [2015] EWCA Civ 1213

by Isam Rumzan

Facts

The claimant, a pregnant woman, exited from a car and walked to the rear of it before stepping out into the road in order to cross. The claimant did not stop at the kerbside before crossing out into the road. She was struck by the defendant’s car which was travelling at 30 miles per hour. The Claimant had walked 3.6/3.7m into the carriageway.

The claimant suffered several bone injuries, significant abdominal injuries and, very sadly, miscarried her child. She also suffered a traumatic brain injury.

Issues for the court

Whether the defendant driver had enough time to break at all, and whether the claimant’s contribution in causing the damage to herself (by misjudging her position walking into the road) was greater than 25%. This is known as contributory negligence.

The reasoning of the court

The judge balanced two main elements in making the decision to dismiss the claim. These were: cause and blameworthiness. As a car could usually do much more damage to a person than a person could do to a car, the court imposed upon drivers a ‘high burden’.

The judges decided that if the defendant had kept a proper look out and seen the claimant when he should have done then he would have avoided the collision, simply by taking his foot off the accelerator pedal. Moreover, the Judges concluded that the defendant should have foreseen the likelihood of pedestrians being on the road. Therefore, the Judges ruled that not seeing the claimant as she was crossing the road placed the defendant in a position of high blameworthiness.

Furthermore, driving a car at even a sensible speed without keeping a proper lookout in a situation in which pedestrians could reasonably be expected to be present in the road pointed to a considerable degree of blameworthiness.

However, although the defendant was held to be primarily liable for the claimant’s injuries, the Judges had to assess the claimant’s involvement in the collision and to therefore assess the impact of the claimant’s actions on the injuries which she suffered. Consequently, it was held that it had been substantially less than that of the defendant. For that reason, the damages (compensation) recoverable was reduced to as much as the Judges regarded as just and reasonable, taking into consideration the claimant’s share in the act.

The judges held that the defendant was 75% responsible for the claimant’s damages. The claimant was held to be 25% responsible for the damages suffered.

Commentary

As this important decision shows, pedestrians are afforded a great deal of legal protection when crossing roads, even when it might appear that the fault lay squarely with the pedestrian. Cars are highly dangerous weapons, and therefore the court held that all car drivers must be alert at all time to unexpected events. This case shows the difference between what non-lawyers might regard as blameworthy and the view of the courts.