A rare case of all the pedestrian's fault

It is not often that the driver of a vehicle that strikes a pedestrian will escape liability altogether, but the English Court of Appeal held in Scott v Gavigan [2016] EWCA Civ 544 that a judge at first instance had been correct in finding that a pedestrian was wholly responsible for an accident in which he was injured. The claimant was struck by the defendant’s moped while he crossed the road.

On appeal, it was held that the judge had been entitled to hold that the claimant’s actions had not been reasonably foreseeable. The claimant had given no indication that he intended to cross the road and it had not been reasonably foreseeable that, near a crossing, he would run out onto the road and into the moped’s path. His action had been “egregious folly”.

The Court of Appeal noted that, unfortunately, it was not that unusual for pedestrians to run out into the road carelessly or recklessly and the reason for imposing liability on a driver who struck a pedestrian in those circumstances was because he should have foreseen a risk and he owed a duty of care not to injure even the foolish. It was difficult to see why a defendant in that situation should face no liability at all except in extreme circumstances.

In this case, the claimant’s lack of success was not simply because of the extent of his own negligence, but because he failed to establish negligence on the part of the defendant.