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To what degree must drivers anticipate the actions of other road users? Personal injury specialist Niall Maclean, of 12 King’s Bench Walk, examines the Court of Appeal’s recent decision on this subject in Scott v Gavigan.
The Court of Appeal, Civil Division, dismissed the claimant’s appeal against a county court judge’s decision that he had been wholly responsible for an accident which had occurred when he had run across a road into the path of an oncoming
moped driven by the defendant. The Court of Appeal held that the judge had been entitled to find that the claimant’s actions could not have reasonably been foreseen by the defendant and it had not been incumbent on the defendant to have taken
steps to avert a risk of which he neither had been, nor should have been, aware. It held that the judge had, however, erred in also finding that, while the claimant had been entirely to blame for the accident, the defendant had been negligent in not
On a clear evening, the defendant was riding his motorcycle along a long straight road at or slightly below the speed limit of 30mph. On the opposite side of the road, walking towards him on the pavement, was the claimant. The defendant was approaching
an informal pedestrian crossing, made up of two bollards in the middle of the road on small raised islands with a gap between the islands for pedestrians to stop while crossing. The defendant watched the claimant walk past the crossing. When he was
about ten metres past the crossing and about ten metres from the defendant’s motorcycle, the claimant ran out into the road without any warning towards the defendant’s motorcycle. Although the defendant tried to avoid a collision, he struck
the claimant causing him serious leg injuries.
At first instance, the claim was dismissed. The judge rejected the claimant’s evidence as to how the accident happened. The judge accepted the defendant’s case that the claimant, who was very drunk, ran out into the road diagonally towards
the defendant’s motorcycle as described above. However, the judge also criticised the defendant’s speed. When the claimant ran into the road, the defendant was about 20 metres from the crossing. Drawing on rules 124 to 126 of the Highway
Code and the stopping distances set out therein, the judge held that the defendant should have been doing 20mph in order to be able to stop for the crossing if necessary. At 20mph the accident would probably have been avoided.
The claim was dismissed because the judge held the defendant could not reasonably have foreseen that the claimant would run out at his motorcycle after walking ten metres past the pedestrian crossing. The judge also held that the claimant’s actions
were so wholly unreasonable and of such overwhelming impact that they eclipsed the defendant’s conduct and were novus actus interveniens.
The issue was whether the judge was wrong to find the claimant wholly to blame. The claimant’s central argument was that the judge was wrong to find the risk that presented itself to the defendant was not reasonably foreseeable. A principle long
established by cases such as Lang v London Transport Executive  3 All ER 609 is that drivers must be aware of the common errors of other road users. The claimant argued that his actions fell under this description. He also argued that,
as a commonplace folly often encountered, his actions were not novus actus interveniens.
It held the judge was entitled to reach the decision he did on foreseeability. He had accepted the defendant’s evidence that he watched the claimant walk down the road for a considerable distance, and past an obvious and natural crossing point.
The claimant gave no indication he wanted to cross. His actions were an egregious folly, not a commonplace one. All foolishness is foreseeable in one sense, but the question in each case is whether the defendant, acting reasonably in the circumstances
prevailing at the time, ought to have foreseen the risk that materialised.
The Court of Appeal also accepted the defendant’s argument that the judge should not have criticised his speed. All the judge’s reasons for this criticism were considered and rejected. The road layout was not such as to mandate a lower speed.
Visibility was good. Rules 124 to 126 of the Highway Code were held to have no application because the defendant was not exceeding the speed limit, he was not sharing the road with a pedestrian and he was able to stop in the distance he could see
to be clear.
Having made these findings, the court declined to rule on whether the judge was wrong to find the claimant’s conduct to be novus actus interveniens. However, the court expressed considerable doubt this was a finding open to the judge. It held it
would take ‘pretty exceptional circumstances’ to deny any remedy to a claimant who had made out foreseeability, negligence and causation.
The judgment is a useful reminder that foreseeability must be considered carefully in each case in light of all the circumstances. The ‘commonplace folly’ argument had perhaps become something of a mantra, especially in road traffic cases.
Actions which are foreseeable in the abstract sense of being conceivably possible may nevertheless not, having regard to all the circumstances, be actions that a defendant ought reasonably to have contemplated.
As with much of the law of causation in tort, recent discussions of novus actus interveniens (particularly in Spencer v Wincanton Holdings Ltd  EWCA Civ 1404),  All ER (D) 194 (Dec)) have emphasised the importance of normative considerations
such as fairness in applying the doctrine. The Court of Appeal in the instant case has continued this evaluative approach, albeit in obiter dicta. The decision reminds us that recklessness is not a necessary condition for a finding of novus actus
but on the right facts it can be a sufficient condition (see for example Wright v Lodge  4 All ER 299). But in the broad run of cases where a driver collides with a pedestrian in foreseeable circumstances either he will not be negligent
on the facts that pertained or there will be an apportionment of liability. Since the reason for imposing any liability on the driver is because he ought in the circumstances to have foreseen the risk that materialised, the court found it difficult
to see why there should be a finding of novus actus against the pedestrian. The court gave as an example where such a finding might be justified the situation where a group of youths were goading each other to run as close to oncoming traffic as possible.
Niall Maclean appeared for the defendant in this case at first instance and in the Court of Appeal.
Interviewed by Robert Matthews. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
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