Kerry Underwood

ALCOHOL, PEDESTRIANS AND CONTRIBUTORY NEGLIGENCE

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The matters dealt with in this piece are examined in great detail in my three volume, 1,300 page book Personal Injury Small Claims, Portals and Fixed Costs – price £50 and available from Underwoods Solicitors here.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

In

Lee Edmunds v Motor Insurers’ Bureau, Arbitrator’s Decision, 10 May 2019

Arbitrator Colin McCaul QC was considering an appeal by the claimant against the decision of the Motor Insurers’ Bureau (MIB) in relation to a claim under the Untraced Drivers’ Agreement of 28 February 2017, where the MIB had held the claimant to be 50% liable for the accident due to the amount of alcohol that he had consumed and the clothes that he was wearing.

The claimant was a pedestrian at night, when he was struck by a car and his evidence was that he had drunk six pints of lager.

In

CC v TD [2018] EWHC 1240 (QB)

the Queen’s Bench Division of the High Court held that mere intoxication did not expose the claimant, in that case a pedestrian who died of his injuries, to criticism and that a claimant’s actions are to be judged by reference to a sober person.

There, the judge said that even if the claimant had been guilty of a degree of inadvertence, it did not amount to negligence.

In

Liddell v Middleton [1996] PIQR P36,

the Court of Appeal said:

“It is not the fact that a plaintiff [the old name for a claimant] 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 these circumstances increase the blameworthiness of it.”

In

Lunt v Khelifa [2002] EWCA Civ 801

the Court of Appeal said:

“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.”

The Arbitrator described the MIB’s criticism of the claimant for wearing flip flops, which are more likely to cause a person running to avoid a vehicle to trip over, as “faintly absurd”. It was the negligence of the driver that caused the flip flop to break and the claimant to stumble and fall.

The Arbitrator also had this to say about the MIB’s criticism of the claimant for wearing dark clothing at night:

The General Guidance to Pedestrians within the Highway Code at Rule 3 states that pedestrians should wear something light, coloured, bright or florescent in poor daylight conditions and use reflective materials when it is dark. Whilst that advice is not restricted in the countryside, there must be few, if any, pedestrians in citizen towns who adopt it. In consequence, I do not consider it negligent for the claimant to have worn the attire that he did.”

The Arbitrator held that the MIB, upon whom the onus of proof lies, failed to prove that the claimant was contributorily negligent.

 

Comment

A correct, sensible and practical decision.

Thank you to Lisa Quick, a Paralegal with Mooneerams Solicitors for information about this case.

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Written by kerryunderwood

July 11, 2019 at 12:57 pm

Posted in Uncategorized

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