When Pedestrians Must Pay
Page 63
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By Our Legal Adviser
BY sheer " weight " of road use and changing public opinion, the Jaw has been forced to acknowledge
that if the driver owes a duty to the pedestrian, the pedestrian also owes a duty to the driver.
The most probable way in which this hardening attitude is manifested is where the pedestrian is involved as a victim of an accident and as a subsequent plaintiff. Where this is so he will, nowadays, have any damages to which he would otherwise be entitled reduced by the percentage by which the court assesses that his own negligence contributed to the accident. If it is found that he was wholly to blame, then, of course, he can recover nothing.
Since the conception of pedestrian crossings in 1934, much of the civil litigation has inevitably surrounded the behaviour of pedestrians and drivers on, and immediately adjacent to, them. The -fact that upon certain types of crossing (the position has varied from time to time with different sets of regulations) the pedestrian has an absolute right of way does not, in the law's view, absolve him from the necessity to take care.
Thus, Lord justice Scott in 1939 said: "A pedestrian has no right suddenly to embarrass a driver who is driving at a 'reasonable speed_ Upon a reasonable interval occurring, say, 50 to 70 yards, a waiting pedestrian is entitled to step on to the crossing and cross."
Pedestrian Will Obey More recently, in 1947, Lord Greene, the then Master of the Rolls, said: "The driver is entitled to assume the pedestrian will obey the [Highway] Code which says cross only when the traffic is held up, and that he will obey the lights, subject to his ordinary duty to take care if a pedestrian is in fact crossing."
So much for the defence available to motorists that the pedestrian was wholly or partly to blame for his own injuries. But the law goes further than allowing this as a defence—it may also be used offensively by the motorist where he has suffered as a result of a pedestrian's negligence and wishes to recover damages, and it may be of interest to recall a case where this has happened.
In the case of Eames v. Capps (1946) damages of £2,500 were awarded to the widow of a pillion rider against a pedestrian. The pedestrian had been walking with another man and both had stepped off the pavement with their minds on something else. The defendant had seen the lights of the motorcycle approaching, but had hesitated and then taken another step forward, although his companion had stepped back to the pavement.
1 he motorcyclist had sounded his horn and, although driving at a reasonable speed, had been unable to avoid an accident, as a result of which the pillion passenger had been killed. The judge held that the motorcyclist was not negligent but the pedestrian clearly was.
More recently the same principle was involved in the case of Lewis v. Carmarthenshire County Council, which was finally concluded in the House of Lords this year. The pedestrian was a child in that case, and the people who had to bear the burden of the child's behaviour— one can hardly talk of a child's " negligence " when it is hardly four years old, although in a person of discretion one could—were the education authority responsible for the school premises from which it had rushed into the road at a time when it should have been .properly supervised. A lorry driver passing the school at the time had swerved to avoid the child and in so doing had struck a telegraph pole, resulting in his own death.
Lack of Experience One aspect of the law that is frequently not appreciated in these matters is how the position is affected by the age or lack of mobility of the pedestrian involved. When considering whether a driver has been negligent or not, one is not entitled to take into consideration the driver's age or experience or the lack of it. There is only one standard of careful driving—that of the hypothetical reasonable driver—and the complete beginner wearing his " L " plates for the first time must live up to it. But so long as the pedestrian exercises reasonable care within his physical capabilities he is not being negligent.
Thus, as long ago as 1832 it was held that all persons, even if infirm or paralytic, have a right to walk on the road and to be entitled to the exercise of reasonable care on the part of other road users. In 1939 a pedestrian who was aged 69 was knocked down by a bus, and the judge rejected the argument that the driver need not take into account unexpected idiosyncrasies. He had seen her at a moment when he could have avoided the accident, but he did not know whether she was young and active or elderly and slow, and in the result he struck her.
The judge said: "What she did was the best she could. I cannot believe that the law is so absurd as to say that, if a pedestrian happens to be old and slow and a little stupid, and does not possess the skill of the hypothetical pedestrian, he or she can only walk about his or her native country at his or her own risk. One must take people as one ends them."