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This article was co-authored by Eleanor Shaw, Trainee Solicitor, Edinburgh.
The recent Court of Session decision in Sandra Cameron & Another v Ifeanyi Nwankwo & Another [21.01.22] is a road traffic case involving a failure to keep good lookout, maintain lane discipline and the applicability of contributory negligence. The first defender, driving a taxi, struck the first pursuer, a pedestrian. The second defender was the first defender’s insurance company and the second pursuer was the first pursuer’s fiancé, who witnessed the accident.
Background
The incident occurred at around 11.50pm when the first pursuer was crossing a road divided into four lanes, south of a traffic light controlled pedestrian crossing.
The first defender drove through a set of green traffic lights, turned onto the street where the pursuers were located and struck the first pursuer causing serious and permanent injuries. It was claimed the first defender had been driving in the wrong lane and at excessive speed.
Evidence was given by attending police officers, as well as the first defender and second pursuer. Both parties had instructed collision investigation experts to give evidence on the speed of the first defender and the point of impact - the key considerations in fact for the judge. The pursuer’s expert concluded that the first defender had been travelling in wrong lane.
Decision
The judge was tasked with deciding on liability only. He concluded that the collision occurred in a southbound lane, with the first pursuer being thrown to the left and landing in a different lane than where she was struck.
The judge preferred the pursuers’ expert evidence, and considered it to be on balance more likely that the first defender had cut the corner while manoeuvring.
Based on this conclusion, the judge found it less important to conclude the speed of the car, although it was likely the driver was travelling at excessive speed. It was, interestingly, noted that the locus of a city centre at night was not sufficient to conclude driving at 30mph in a 20mph zone was negligent.
Contributory negligence
It was argued that the first pursuer had materially contributed to the accident and any award granted should be reduced.
The judge applied the 1969 case of Snow v Giddins, which concluded a pedestrian owed a higher standard of care to themselves when not using a pedestrian crossing and therefore placing themselves in an unnecessarily hazardous position. This case had similar factual circumstances to the present one, in that the pursuer had been weaving through stationary traffic before being struck by a motor scooter travelling on the wrong side of the white lines. In Snow, contributory negligence was calculated at 25%.
The leading UK Supreme Court case of Jackson v Murray was also considered, in which a pedestrian had run out from behind a bus towards a car driving excessively fast.
The judge determined that both parties were at fault. Due to the first pursuer crossing a carriageway instead of using the nearby pedestrian crossing, wearing dark clothing and having ought to be aware that she would be difficult to be seen by approaching drivers, contributory negligence was assessed at one third. However, this may be appealed.
Comment
A car is considered to be a lethal weapon by the courts, making a full defence on liability difficult if the driver has not acted with the necessary standard of care.
As such, the court will focus on the blameworthiness of the actions of drivers even where the pedestrian has been potentially reckless in their actions.
In this case, the key factor for considering liability was not the excessive speed, but rather the positioning of the driver on impact. The conclusion that travelling above the speed limit is not inherently negligent in itself is unusual and may be relied upon in future cases.
United Kingdom