Lightfoot v Go-Ahead Group Plc [2011] EWHC 89 (QB)

Case No 9NE10813[2011] EWHC 89 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Date 01/02/2011
NEWCASTLE DISTRICT REGISTRY
The Law Courts
Quayside
Newcastle upon Tyne
NE1 3LA
Before
The Hon. Mr. Justice McCombe
Between
STEPHEN LIGHTFOOTClaimantGO-AHEAD GROUP PLCDefendant
Paul Rose QC (instructed by Irwin Mitchell LLP) for ClaimantSusan Rodway QC (instructed by Crutes LLP) for DefendantHearing Hearing dates: 12, 13 and 17 January 2011
JudgmentMr Justice McCombe:
[1]This is an action for damages in respect of very serious personal injuries sustained by the Claimant in a road traffic accident which occurred on Low Moor Road, Langley Park, Co. Durham at about 1821 hours on 18 November 2008. The Claimant contends that the accident and his injuries were caused by the negligent driving of a bus (a Single Decker Dennis vehicle, registration number S783 RNE), driven by Mr Derek Edward Kent (“Mr Kent”) in the course of his employment by the defendant.[2]Mr Kent had been working in that employment for about 20 months at the date of the accident. He was 56 years old at the time and had held a full driving licence since 1972; he qualified as an LGV driver and passed the advanced driving test in 1983. He obtained his PSV licence when he began to work for the Defendant.[3]The Claimant was born on 16 September 1956 and was, therefore, 52 years old at the date of the accident. He was divorced from his wife, Mrs Sarah Lightfoot, and lived primarily with his mother in Lanchester, Co. Durham (slightly to the north-west of Langley Park), but had a woman friend who lived in Esh village (to the south-west of the accident scene), which was to have been on Mr Kent’s later bus route, after Langley Park and before Esh Winning. At the time of the accident the Claimant was wearing a grey hooded parka-style coat, blue jeans and white trainers.[4]Until the conclusion of the factual evidence at trial, liability was denied by the Defendant. At that stage an admission of primary liability was made on a limited basis. I shall return to the admission made later. However, while primary liability is now admitted, it is contended by the Defendant that the accident and the claimant’s injuries were caused or contributed to by the Claimant’s own negligence.[5]By an order of District Judge Goudie made on 24 June 2010 it was ordered that there be a “split trial” of the issues of liability and causation. It is agreed that the issues of contributory negligence, raised on the pleadings, are comprised in that direction. The trial on the issues of liability, causation and contributory negligence has been heard by me accordingly on the dates indicated on the cover sheet of this judgment. At that trial the Claimant has been represented by Mr Paul Rose QC and the Defendant by Miss Susan Rodway QC.[6]Between 24 and 27 August 2009, Mr Kent stood trial in the Crown Court at Durham, before His Honour Judge Forster QC and a jury, on a charge of dangerous driving. He was acquitted on that charge but was convicted of careless driving. He was fined £800 and his licence was endorsed with 8 penalty points; he was ordered to pay £1,150 costs. He was also dismissed from his employment with the Defendant on the grounds of gross misconduct because of the accident.

(B) The accident and the basis primary liability

[7]The accident was filmed on CCTV cameras fitted on the bus. The relevant shots were captured by the forward looking camera and another camera focussed on the driver and his cab.[8]The bus was travelling on a scheduled service between Newcastle and the village of Esh Winning. The journey was timetabled to start in Newcastle at 1704 hours and to end in Esh Winning at 1830 hours. The bus had left a scheduled stop at Stringer Terrace, at the western end of Langley Park, at about 1821:22 and the collision is captured on the bus camera and timed on that camera at 1821:40, that is 18 + seconds after departure from the stop. The bus was travelling in a westerly direction and the impact was about 85 metres to the west of the entrance to Langley Park cemetery.[9]The location of the accident is best shown on an aerial photograph, annotated by Dr Andrew Ninham, the Accident Reconstruction expert, called on behalf of the Claimant (2/50/367 in the trial bundles) and by reference to an Ordinance Survey map called “plan B” at the trial. Copies of these are annexed to this judgment. There is also a useful site plan dawn up by the investigating police officer, a copy of which is at 1/27d/136. The bus was travelling from right to left on all these visual aids.[10]At the time of the accident it was dark and the road was unlit. The relevant stretch of road, looking ahead from the bus stop (at Stringer Terrace) immediately before the accident, was straight for about 500 metres; there was no on-coming traffic. There is a pedestrian footpath on the north side of the carriageway, but no footpath to the south. The weather was fine and the road was dry. The speed limit for buses was 50 mph; the evidence shows that prior to braking, just before impact, the bus was travelling at 23 to 25 mph. It was being driven on dipped headlights. It is contended for the Claimant that it was negligent of Mr Kent not to have engaged main beam headlights.[11]There is a considerable body of evidence from witnesses who saw a man of the Claimant’s description in the Langley Park area between about 1630 hours and 1805 hours. I think it is probable that all of these sightings (with one possible exception) were of the Claimant.[12]At about 1645 hours. Ms Beverley Moralee was driving in a westerly direction along Low Moor Road and was about to turn right to approach her home at Blackburn Farm when she saw a figure in a dark coloured longish coat ahead of her by about 200 yards on the footpath. The figure seemed to stagger into the middle of the carriageway. She was sufficiently concerned for the person’s safety to report the matter to the police when she arrived home. (Another witness Ms Joan Churnside also spoke of seeing a figure on that footpath in about the same spot as that reported by Ms Moralee, although she put the sighting at about 1720/1725 hours, which is rather difficult to reconcile with other sightings of the Claimant.)[13]The Claimant was seen and recognised in the Spar grocery shop at Langley Park (marked on plan B) by a sales assistant, Ms June Simpson, but the timing of this incident is unclear, although it seems that it must have been before 17.30 as Ms Simpson finished work at that time. Ms Simpson formed the opinion that the Claimant was drunk; he was unsteady on his feet and was slurring his words. He purchased a quarter bottle of vodka. He had asked for information as to the time of a bus to Esh Winning.[14]The Claimant’s mother, Mrs Rosaline Lightfoot says, in a statement read to the court, that in a telephone call at about 1800 hours her son had told her that he did not know exactly where he was and that he sounded anxious; she advised him to get on the next bus that he saw. Another witness, Ms Amanda Herworth, was standing near the Spar shop and saw a man (who was unknown to her) come out of the shop with a vodka bottle in his hand. He staggered into the path of a car which swerved to avoid him. The man was refused entry to the Langley Park public house (also marked on Plan B), outside which Ms Herworth was standing; he then consumed the vodka and left the bottle on the ground. This must have been the Claimant.[15]Another bus driver, Ms Beverley Sivyer, saw a man wearing clothing of the type worn by the Claimant that day, walking diagonally across the eastbound carriage way of Low Moor Road towards the footpath on the north side of the road. This was very shortly after she had turned her bus in the turning circle at Langley Park cemetery, just before 1805, to begin an eastbound journey. The man was, to her mind, obviously drunk or under the influence of drugs. She had to stop her bus to avoid him. This was clearly the Claimant who was at that spot after speaking to his mother on the telephone and after purchasing and drinking the vodka bought at the Spar shop.[16]A police officer who attended the accident scene, PC Michael Hamilton, said that the Claimant smelt strongly of intoxicating liquor.[17]From this evidence it is clear that the Claimant was very drunk at the time of the accident. It seems to me to be unnecessary to determine more precisely what the Claimant’s movements about the Langley Park area on that evening were.[18]In her opening written submissions Miss Rodway referred to the Claimant’s medical history and submitted that the history of depression and alcohol abuse, together with a recorded earlier incident of the Claimant walking in the middle of the road in July 2008, suggested that the Claimant may have wanted the bus to run him down or at the very least it showed that he took no care at all for his own safety. While the Defendant called the Claimant’s former wife, Ms Sarah Lightfoot, to give evidence of the Claimant’s alcohol abuse and other erratic behaviour, the medical records were not examined in any detail and there was no formal expert medical evidence of the Claimant’s mental state. Miss Rodway accepted that she could not pursue her initial submissions in this respect. There is no reliable evidence that the Claimant was looking to harm himself.[19]Turning back to the accident, the forward facing bus camera picks up the first signs of the Claimant (his white shoes) at between 1821:37 and 1821:38 when he was on or near the white lines at the centre of the road. The impact is shown on the same camera at 1821:40.4. He is, therefore, on camera for about 2.5 seconds before the collision. However, it is uncontroversial that he would have been visible to the human eye, in the prevailing conditions, at a greater distance than that represented by those 2.5 seconds.[20]The evidence of Dr Ninham, which I accept, is that the Claimant would have been identifiable as a pedestrian at a distance of 30 metres and as an object in the road at no less than 48 metres. According to his calculations, with a normal perception/response time of between 0.75 to 1.5 seconds it should have been possible, therefore, to have brought the bus to a halt before impact. It is now accepted by the Defendant that the accident could have been avoided by action on the part of Mr Kent.[21]The CCTV cabin camera in the bus shows Mr Kent in the seconds before the accident. He is seen in those shots to turn on the interior cabin light, take hold of his laminated “bus board” (or timetable for the route) (copy at 2/62/492 in the bundles) and to lower his head. While holding the board with his right hand Mr Kent is shown holding the steering wheel with his left hand only. The film clearly suggests that Mr Kent’s purpose was to read what was on the board. It is also clear that the illumination of the cabin light caused a substantial reflexion on the windscreen of the bus which would have impaired visibility. While Mr Kent was keen to tell me that bus drivers are inured to such reflexions, from lights in the passenger cabin which remain illuminated at all times in the hours of darkness, it is clear that in this case the cabin light significantly increased the reflective effect from whatever was previously reflected by other interior lighting in the passenger area.[22]In his witness statement in this action, Mr Kent says:
“I was looking straight ahead and the road was perfectly clear for as far as I could see. There was nothing at all in the vicinity, neither traffic nor pedestrians. I then decided to have a quick look at my bus running board to make sure that I was on time. I took it, glanced down at the board and put my finger in the place that I wanted to look at before glancing back up. There was still nothing ahead and I glanced down again momentarily focusing upon the running board but then I lifted my eyes so that I was looking straight ahead, even though my head was slightly in a downward position. At that point something caught my attention although I could not make out what it was. There was something on the right. Then, a pedestrian seemed to run, or stumble, hesitate and then run again into the path of a [sic] bus. I saw him become visible as he emerged.”
In interview with the police on 5 January 2009 Mr Kent said this in answer to the officer’s questions:
“A. So what I think happened is I’ve pulled away from Stringer Terrace, there’s something on the bus called an AVL, right, it’s an Automatic Vehicle Locator. … and that gives you an indication of whether you’re running early or running late. From a company point of view if you’re running late it’s not so important but if you’re running early you can get disciplined for it so you check that AVL continuously throughout your shifts to make sure that you’re not running early and of course you can do that at any time when the bus is moving forward or whatever. Em, of course on this particular occasion me AVL wasn’t working so as I’ve pulled away I’ve thought oh shit, last bus to Esh Winning, if I’m running early, somebody’s missed the last bus to Esh Winning so I think I’ve picked the bus board up, slid it onto me knee, looking ahead at this time, put the light on, point me head down like that, still looking at the road. I glanced down and put me thumb onto the correct part of the bus board that I want to check, right, I’m not reading it. I lift me head up, I check that everything is clear forward which it is, I now want to have a glance down at the time I should have left Stringer Terrace. I point me head down and it’s at that point that something holds me attention on the road. What it is I don’t know, it could be the wind blowing the leaves across, it could be, I don’t know, a pheasant or something trying to cross the road, but it holds me attention and I never get to look down at that bus board again because within half a second his feet become apparent that someone is there and that’s when I go into the emergency stop routine.”
In his evidence at the Crown Court Mr Kent said:
“Q. So as it were we have you now, you have got your left hand on the wheel, you have looked ahead, you have positioned your head, you have positioned your thumb. What happens next, Mr Kent? A. My eyes are still on the road. I think I bring my head up because I want to take a hard physical look at the road ahead. The road ahead is clear, there is no pedestrians in sight at that point of time. I drop my head back down, my eyes are still on the road at this point of time and it’s at that point that I believe I started to see something, I didn’t know what it was at that particular time. So my head is down but my eyes are on the road.”
In cross-examination at this trial, Mr Kent accepted that his head was “partly down” for 2 seconds during this time.[23]It appeared that, to the police in interview and in the Crown Court, Mr Kent was saying that his attention was drawn to something in the road while hishead was still pointing downwards, although he was actually looking forward along the road. Mr Rose put to him that if truly he had had his attention attracted to something in this way he would have lifted his head immediately. He said, “Not necessarily. Your concentration is on what you’re physically seeing”.[24]The only passenger on the bus at this time was Ms Valli Turnbull who did not see the accident. She told the police that when Mr Kent returned to the bus after alighting to attend to the injured Claimant, he said “Where did it come from?” This suggested, of course, that he had not seen the Claimant’s approach at all. A police officer, PC Stephen Stoker, who attended the scene, said that Mr Kent said to him, “I saw a flash from my offside then the windscreen shattered”. PC Stoker said that he recorded this comment when he made up his notes of the incident shortly before 2100 hrs when he went off duty. Mr Kent did not accept that he said this; he said that it was not the short of language that he would have used. I find, however, that Mr Stoker’s recollection of the comment, written down by him on the same evening, is accurate.[25]In cross-examination, Mr Kent was also taken to an answer given in an interview with his employers on 19 November 2008. This answer indicated that he agreed with the suggestion that it was only when he had looked up that he had reacted to the Claimant’s presence: 2/57/479. It was put to him that he had made no reference in that answer to his head pointing downward while he continued to look ahead along the road. He agreed that he had not said this, but said that it was only the day after the accident; it had been a traumatic experience; he had not slept and was tired.[26]As I have said already, at the close of the factual evidence, Miss Rodway conceded the issue of primary liability. She made the concession on the basis of Mr Kent’s use of the interior light and his looking at the road through the top of his glasses rather than fully ahead. This, Miss Rodway accepted, deprived Mr Kent of the opportunity to react for between 0.5 second and 1 second. Within that period, she accepted, Mr Kent could have reacted to bring the bus to a stop and thereby could have avoided the collision.[27]Miss Rodway made it clear that she was not admitting on the Defendant’s behalf that Mr Kent was actually focussing on the bus board rather than looking ahead. Nor was she admitting that it was negligent not to use the bus’s main beam headlights, as argued by the Claimant. Miss Rodway submitted, in making the admission, that this was a very momentary inattention of 0.5-1 second on Mr Kent’s part. In closing submissions she argued that the evidence indicated that, with the Claimant first being identifiable as a pedestrian at 30 metres, the negligent delay in Mr Kent’s reaction can be narrowed down to 1.27 seconds.[28]I do not accept Mr Kent’s account that while his head was pointing downwards he was still focussing on the road ahead. I find that the evidence makes it abundantly clear that he had his head down and was attempting to read from the board. In my judgment, this is entirely clear from the CCTV film. This shows his attention on the board, then the lifting of his head and then, and only then, his reaction to the presence of the Claimant. Indeed, in the seconds after the departure from Stringer Terrace at 1821: 20, Mr Kent was beginning the process of taking hold of the bus board and turning on his cabin light from about 1821:33.[29]Mr Kent told the police that the Automatic Vehicle Locator (“AVL”) device in the bus, that would have given him the information that he was looking for on the bus board, was out of order. His own account of looking forward with his head pointing down and reacting to the Claimant from this position does not square at all with what is shown in the film, his own comments to Ms Turnbull, to PC Stoker and to his employers, supported by the clear fact that he wanted to get the information that the AVL was failing to provide to him.[30]It is clear from Dr Ninham’s evidence that if Mr Kent had been looking forward he would have seen the Claimant within ample time in which to stop.[31]I do not think that Mr Kent was being deliberately untruthful in his evidence. He deserves significant sympathy that a few seconds inattention on his part (albeit seriously negligent inattention) had such tragic consequences. I think, however, that with the passage of time he has convinced himself of an explanation that does not square with the other objective evidence in the case.[32]On the facts of this case, I also consider that it was negligent of Mr Kent not to engage his main beam headlights. I accept entirely that it must always be a question of fine judgment as to precisely when a careful driver should engage main beam and that he had only just pulled away from the previous bus stop. However, this was a very dark, straight country road with no oncoming traffic and Mr Kent had had ample opportunity to assess that fact. While not determinative of this aspect of the case the Driving Standards Agency’s guidance on the driving of buses and coaches specifically recommends the use of main beam in rural areas where possible.[33]There was ample time, had Mr Kent not been distracted, for him to assess whether or not it was desirable to switch to main beam. It cannot have assisted his assessment in this particular respect that his concentration was diverted by taking hold of the board and then by holding it in his right hand in an illuminated cab, with the board thereby obstructing the stalk switch on the right of the steering column which operated the lights. Had he wanted to alter the beam, he would have had to shift the board to his left hand, take his right hand off the wheel and switch the beam. Taking both hands off the wheel to do this would obviously have been even more inadvisable.[34]It is worth noting also in this respect that in his police interview, Mr Kent said he could think of no reason why he did not use full beam; he said that “unless you have a reason to put your headlights on [in context, main beam]…I think generally speaking you would drive on dipped headlights” (1/27e/143). That is to say, Mr Kent’s “default setting” in this respect was to act contrary to the DSA guidance.[35]I now turn to the question of contributory negligence.

(C) Contributory Negligence

[36]As I have already mentioned, it seems that the Claimant was very drunk at the time of the accident,[37]It is perhaps useful at this stage to consider the law relating to the consumption of alcohol by pedestrians and the consequence of it in apportionment of liability for such a pedestrian’s negligently caused injury.[38]I think that Mr Rose is correct in his submission in paragraph 33 of his skeleton argument, from which Miss Rodway did not dissent, that:
“The significance of alcohol is this[. I]f because of the influence of alcohol a person acts in a careless way that careless conduct itself may give rise to an allegation of contributory negligence. However, it is important to distinguish that from the mere fact of being under the influence of alcohol.” (Punctuation corrected) Mr Rose cites Lunt v Khelifa [2002] EWCA Civ 801 from which the following passage in the judgment of Latham LJ is of particular assistance. Latham LJ quotes from the judgment of Stuart-Smith LJ in Liddell v Middleton (1996) PIQR 36: “He said at page 40, in relation to a submission which sought to equate the approach to a drunken driver to the situation of a drunken pedestrian, as follows: “That may be so in the case of a driver who puts himself in the control of an object which is capable of great damage if it is not properly controlled, but I am not persuaded that it makes a significant difference in this case in the case of a pedestrian. It seems to me that the pedestrian’s conduct has to be judged by what he did rather than the explanation as to why he did it.”
Then at a later stage, at page 43, having referred to the statistical information which had been before the judge, he said:
“The result of that statistical survey is no doubt a matter of expert knowledge not available to the layman. But whether it is of any material assistance in this case is another matter. It is not the fact that a plaintiff has consumed too much alcohol that matters, it is what he does. If he steps in front of a car travelling at 30 mph at a time when the driver has no opportunity to avoid an accident, that is a very dangerous and unwise thing to do. The explanation of his conduct may be that he was drunk: but the fact of drunkenness does not, in my judgment, make the conduct any more or less dangerous and it does not in the circumstances increase the blameworthiness of it.”
It seems to me that those passages from Stuart-Smith LJ are apt to the circumstances of this case. It seems to me, as I have already indicated, that the fact that the appellant had taken drink was of undoubted significance if one was looking for some reason why he might have behaved in the way he did. But for the purposes of determining apportionment, the important question is what he did.” “That may be so in the case of a driver who puts himself in the control of an object which is capable of great damage if it is not properly controlled, but I am not persuaded that it makes a significant difference in this case in the case of a pedestrian. It seems to me that the pedestrian’s conduct has to be judged by what he did rather than the explanation as to why he did it.” “The result of that statistical survey is no doubt a matter of expert knowledge not available to the layman. But whether it is of any material assistance in this case is another matter. It is not the fact that a plaintiff has consumed too much alcohol that matters, it is what he does. If he steps in front of a car travelling at 30 mph at a time when the driver has no opportunity to avoid an accident, that is a very dangerous and unwise thing to do. The explanation of his conduct may be that he was drunk: but the fact of drunkenness does not, in my judgment, make the conduct any more or less dangerous and it does not in the circumstances increase the blameworthiness of it.”[39]Thus, it is necessary to look at what the Claimant did rather than at the explanation for what he did. That is, it is the Claimant’s act of walking onto the carriageway and into the path of the bus, rather than the drunken state in which the act was undertaken, that is relevant.[40]I think that it is right that the Claimant was probably seeking to cross the road and to flag down the bus with a view to taking it to Esh, where his woman friend lived. So we have a case of a potential bus passenger who was walking along Low Moor Road and who saw a bus approaching and travelling in the direction that he wanted to go. The pedestrian walked diagonally across the road (not straight across to the southern side) and tried to flag down the vehicle. He did this on a very dark and unlit country road at night when his judgment of speeds and conditions was very substantially impaired by drink. He could and should (even in a drunken state) have taken some warning from narrow escapes from other vehicles on at least two previous occasions earlier that evening.[41]Obviously, a potential bus passenger should find a bus stop and wait there for his bus rather than trying to flag a bus down between stops. There was in fact another stop not far further on from where the accident occurred (North Farm Westbound – see plan B), although in evidence Mr Kent seemed to have been unaware of this stop. The Claimant, however, not appreciating where the stops were, went onto the carriageway in the dark in an attempt to get the bus to stop for him. Whether done when drunk or when sober, that seems to me to be an act of significant carelessness.[42]One sets that against the fact that a fully observant driver in Mr Kent’s position would still have been able to avoid colliding with the careless, drunken pedestrian that stepped into the path of his bus. In addition, with another stop ahead on the side of the road where there was no footpath, a stop which the careful bus driver would have been anticipating, there must have been a prospect of pedestrians at or near to the edge of the carriageway. This was also the last bus to Esh Winning that night and, as Mr Kent himself accepted both in the Crown Court (1/33/252) and before me, he was aware (as common experience indicates) of times when passengers try to flag down buses between stops, particularly so perhaps in the case of a “last bus” in a rural area. Mr Kent accepted that it was possible that the Claimant was trying to do this here.[43]Miss Rodway took me very briefly to a number of the previously decided cases that have had to consider allegations of contributory negligence made against pedestrians injured by the primary negligence of the drivers of motor vehicles. It is not necessary to go through these in any great detail and indeed Miss Rodway herself did not do so. However, she argued in particular that, in many of the decided cases, the drivers concerned had very much more reason to expect the presence of pedestrians than Mr Kent did in this case. She drew my attention in particular to Ehrari v Curry [2007] EWCA Civ 120 in which a child pedestrian, 13 years of age, was held to be 70% responsible for the injury she suffered when she stepped out from behind a parked car and was struck a second later by the nearside mirror of a truck driven by the defendant, in an area where pedestrians were to be expected.[44]Miss Rodway submitted that in this case too the Claimant should be found 70% responsible for the damage in this case.[45]Mr Rose submitted in reply that the Court of Appeal has been critical in the past of over-reliance by Counsel on past decisions on apportionment of liability when each case has to depend very much upon the judge’s assessment of the particular facts before him or her. He argued that the only real point of principle in these examples is to be found in the judgment of the Court of Appeal, given by Hale LJ (as she then was), in Eagle v Chambers [2003] EWCA Civ 1107, at paragraph 16 in these terms:
“It is rare indeed for a pedestrian to be found more responsible than a driver unless the pedestrian has suddenly moved into the path of an oncoming vehicle…The court has “consistently imposed upon the drivers of cars a high burden to reflect the fact that the car is potentially a dangerous weapon”: Latham LJ in Lunt v Khelifa [2002] EWCA Civ 801, para 20”
. Mr Rose submits that this is far from a case where a pedestrian emerged suddenly into this road; he was there with ample opportunity for the careful driver to see and avoid him, even if he was drunk and even if his presence there in the first place was extremely careless.[46]Mr Rose argued that the Ehrari case (supra) was within the “rare” category identified by Hale LJ in Eagle v Chambers (supra) and that the pedestrian there had been in sight for 1 second and that the Defendant was only liable because, on the facts, he should have been able to steer a course to avoid the child. In this case, said Mr Rose, the Claimant was identifiable as “something” moving in the road at 4 seconds and as a pedestrian for 3 seconds; such a case is not within that category which Hale LJ said is “rare indeed”.[47]Mr Rose submitted that the appropriate apportionment was 80% to the Defendant and 20% to the Claimant.[48]As can be seen the rival submissions are widely apart and surprisingly so given that each party is represented by such experienced solicitors and counsel.[49]The consequence of Mr Kent’s distraction was that he was disabled from recognising the “something” in the road for about 4 seconds and the “person” in the road for about 2 seconds. The Claimant was clearly negligent in doing what he did and must take a significant responsibility for what occurred. Mr Kent’s distraction was not caused by a driving related activity at all: he was not checking wing mirrors, a speedometer or switches or controls affecting the vehicle’s performance or safety (such as a windscreen de-mister). He decided to read a timetable and was not observing the prime rule of driving, to keep a good look out; he prevented himself from looking out at all and took one hand off the steering wheel in doing so. His action was not dissimilar to answering a mobile telephone, opening a drink or altering a radio station or a GPS device when driving. He deprived himself thereby of the necessary opportunity to react, by actions which are seriously negligent for any driver to perform. In addition, he diminished his forward visibility by the deliberate act of turning on the cabin light, so causing an additional reflexion on his windscreen. It is precisely these types of negligent action that needlessly enhance risk to other road users, even if (on the facts) the reaction time actually lost seems relatively short.[50]I note, however, that in apportionment, “It is not simply a case of assessing the comparative blameworthiness of the parties, but of their respective “responsibility for the damage”: see Clerk & Lindsell on Torts 20th Edition (2010), paragraph 3-84, p.228. One looks to see what is “causatively potent”: see e.g. Eagle’s case, at paragraph 17. I do not think that this is one of those rare cases identified by Hale LJ in which a pedestrian is to be held more responsible than the driver.[51]While carefully respecting the view that earlier decisions on different facts can only provide very limited assistance, I have in mind that in Lunt v Khelifa (supra) both Latham LJ and Brooke LJ considered that the trial judge may well have been “generous in his approach to the liability of [the drunken pedestrian]” in assessing it as one third (paragraph 20). In that case Brooke LJ said (at paragraphs 24-25), “The judge appears to have been influenced by the fact that when Mr Lunt walked from the refuge into the western side of the carriage way the defendant’s vehicle would probably have been 20 to 25 metres away, and the judge was satisfied that had the defendant been keeping proper lookout he would, in the two seconds it took him to reach the point where the collision occurred, have been able to take evasive action by steering to his nearside. In those circumstances the judge considered that the driver was two-thirds to blame. Like Lord Justice Latham, I would not necessarily have come to the same conclusion myself. But it was certainly a conclusion which the judge was entitled to reach, bearing in mind that a motor car is a potentially lethal instrument”.[52]I have in mind that here liability is accepted on a limited basis and I have found that such liability, properly assessed, has a considerably wider basis than now admitted by the Defendant. The driver here failed to keep a proper look out for between 2 and 4 vital seconds, longer than the driver in Lunt’s case, and the pedestrian here was indulging in more hazardous behaviour than was Mr Lunt. (D). Conclusion In all the circumstances, apportionment of responsibility for the damage is 60% to the Defendant and 40% to the Claimant. Therefore, I consider that the proper reduction of the damages otherwise recoverable by the Claimant in this case, pursuant to the Law Reform (Contributory Negligence) Act 1945, is 40%.

Cited in 1 later judgment