Driver at fault

Parkinson v Parkinson
[11.35]

[1973] RTR 193n

The defendant was driving his car along a straight unlit road at night. He saw ahead of him on the
nearside of the road two women pedestrians walking in the same direction as he was travelling, but
failed to see until it was too late, two men walking about 20 yards behind them. One of the men was
approximately 4ft 6 inches away from the edge of the road. The road was 25ft wide. There was a
grass verge on the left of the road but only a hedge on the right. The judge found the defendant
wholly to blame. On appeal it was argued that the pedestrians were negligent in not following the
advice in the Highway Code to walk on the right of the road so as to face the oncoming traffic.

Held:
There were no grounds for finding contributory negligence. Even if the outside pedestrian was 4ft 6
inches away from the edge of the road, this did not amount to negligence on a road which was 25ft
wide. It is depriving pedestrians of their natural rights as highway users to say they must walk on the
right and are not entitled to walk on the nearside. The mere fact that a pedestrian walks on the left
side of a country road is not necessarily negligent; it depends on the circumstances. In the present
case there was a grass verge on the left where pedestrians could move onto when faced with an
emergency. There was only a hedge on the right.

Adamson v Roberts
[11.36]

1951 SC 681, 1951 SLT 355, 101 L Jo 511

A pedestrian was walking in daylight along a pavement at a point where it was narrowed by a
projecting building, and had to put one foot over the edge of the pavement into the gutter in order to
pass other pedestrians. As she did so, she was struck from behind by a motor van. The van did not
encroach upon or over the kerb. In the Outer House of the Court of Session the action was dismissed
((1951) 101 LJ 330).
Held, on appeal:
In the circumstances a special duty was imposed upon the driver in relation to the speed at which he
travelled, the warning which he gave and the part of the road on which he directed his vehicle. Appeal
allowed.

Chapman v Post Office

[11.37]

[1982] RTR 165

The claimant was struck by the projecting driver-mirror of a passing vehicle when standing on the
kerb at a bus stop. She sustained a severe blow to her arm. At the trial of her claim for damages the
judge said she must have been leaning over the carriage way and found her equally to blame with the
driver of the vehicle.

Held, on appeal:
She was not at all to blame. A person standing on a kerb is not guilty of negligence if struck even if
leaning out or having her back to the traffic, nor even if she went an inch or two into the roadway.

Powell v Phillips
[11.38]

[1972] 3 All ER 864, [1973] RTR 19, 116 Sol Jo 713

The claimant and a friend were walking along a poorly-lit street at night on the left-hand pavement.
From time to time because of snow and slush on the pavement they walked in the roadway near the
kerb. Whilst so doing, the claimant was hit from behind by the defendant's car, which was travelling at
speed and did not stop. It was argued for the defendant that the claimant was guilty of 25%
contributory negligence because she was not complying with the rules for pedestrians in the Highway
Code: she was walking next to the kerb with her back to traffic, not wearing or carrying anything
white.

Held:
She was not, on the facts, guilty of contributory negligence. Though the Road Traffic Act 1960, s
74(5) (now s 38(7) of the 1988 Act) enables a party to rely upon a breach of the Highway Code as
tending to establish or negative liability, a breach creates no presumption of negligence calling for an
explanation, still less a presumption of negligence contributing to or causing an accident or injury. A
breach is just one of the circumstances on which a party can rely in establishing the negligence of the
other and its contribution to causing the accident or injury. A breach of the Highway Code must not be
elevated into a breach of statutory duty. In the present case, the claimant had not failed to take
reasonable care for her own safety in walking a few feet out in the road for about 20 yards when it got
too slushy; even if it did amount to negligence it made no real contribution to the accident.
Kerley v Downes
[11.39]

[1973] RTR 188

The claimants were father and son, the latter aged 13. At night they left the lighted entrance to a
fairground adjoining a straight country road and walked along a grass verge alongside the road for a
distance and then along the left hand edge of the road for 20 yards or so, preparing to cross to the
other side at a place where there was an isolated street lamp. Before the claimants could cross the
road they were struck from behind by the defendant's car. The judge declined to find the claimant
father negligent either for his own safety or in respect of his son's.

Held:
The judge was right. Following Parkinson v Parkinson and Powell v Phillips[1972] 3 All ER 864, 116 Sol
Jo 713, CA mere contravention of the recommendation in the Highway Code to walk on the right of
the road and not to walk with your back to the traffic did not create a presumption of negligence.
Thomas v Kostanjevec
[11.40]

[2004] EWCA Civ 1782

[2005] All ER (D) 39 (Jan)
The deceased was a pedestrian who was killed when he was struck by the claimant's motorcycle on
the A4042. The road is a single carriageway which is approximately 8m wide. The claimant was
travelling north towards Abergavenny and was riding down a hill towards a bend. The deceased was
attempting to cross the road from east to west on his way home when he was struck by the claimant's
motorcycle.

The claimant's speed immediately prior to impact was 50mph which was below the 60mph speed limit.
The judge at first instance found in favour of the claimant and dismissed the counterclaim, brought on
behalf of the deceased's estate. The basis of the judge's findings was that the claimant's speed was
not excessive. Also as he did not see the deceased until the last moment he was unable to avoid the
collision. The defendant appealed.

Held, on appeal:
The claimant was riding a powerful heavy motorcycle which when approaching the bend at 50mph
made it difficult for him to brake safely. The area was well known to both parties and the deceased
had crossed at that section of the road on previous occasions in the past. The court found that the
claimant had been travelling too quickly in the circumstances, as he could not stop within the limit of
his visibility, and failed to keep a proper lookout, or take account of a pedestrian who may have been
attempting to cross the road. The appeal was allowed with the deceased not being held liable.

Osei-Antwi v South East London & Kent Bus Company Limited

[11.41]

[2010] EWCA Civ 132

The claimant, who was on her way to work had just exited a bus, and was standing on the pavement
where she intended to cross the road by some safety railings.

The bus driver who was returning to the depot, attempted a sharp left hand turn, when the rear of the
bus hit the claimant and crushed her against the safety railings. The claimant sued the defendant for
damages.

The claim was defended on the basis that the claimant was in the road on the wrong side of the
railings where pedestrians were not meant to be. At first instance the judge held the defendant and
claimant both liable, and apportioned liability one-third to two-thirds in favour of the claimant. The
clamant appealed.

Held, on appeal:
The claimant was not at fault, as at the time of impact, she was standing in a designated pedestrian
area. Therefore, as the claimant was not standing or walking in an obviously dangerous position, she
was not doing anything “inherently dangerous”. It was further stated that even though the claimant
knew that the bus was about to turn, she was not obliged to move further back, especially as she was
standing in an area where vehicles were not meant to be. Therefore, as the bus driver got the angel
wrong, as she attempted to turn, this was the sole cause of the accident, and there was nothing that
the claimant did to cause or contribute to it. Appeal allowed.