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Although a collision had been caused by the negligence of both a pedestrian and a bus, the bus driver's continuing failure to keep a proper lookout, and the fact that the pedestrian was already crossing the road when the bus moved off, meant the bus driver was more culpable.
Personal Injury - Liability - Contributory Negligance
Sir Robert Nelson
21 June 2013
The claimant pedestrian was hit by the defendant's bus when crossing a road in front of traffic lights which he believed were on red. The defendant's bus had been waiting at the traffic lights and started to drive off when the claimant was in the middle of crossing the road. The claimant started to run but was struck by the nearside corner of the bus. The defendant's bus driver said she did not see the claimant.
The court held that (1) a failure to see something was not necessarily negligent. However, in this case, the junction was very well lit and CCTV footage showed that the claimant should have been visible to the defendant's bus driver. The Highway Code 170 requires drivers to ‘watch out for pedestrians crossing the road into which you are turning. If they have started to cross they have priority so give way.' Further, the route taken by the claimant was not unusual and as a regular user of the junction, the defendant's bus driver should have been aware of the potential hazard. (2) If the defendant's bus driver had kept a proper lookout, she would have been able to see the claimant crossing the road in sufficient time to avoid a collision. (3) The claimant was guilty of contributory negligence as he had not crossed at the crossing and he should have had a higher degree of vigilance given the presence of the bus waiting to move off from the lights. However, the defendant's bus driver's continuing failure of lookout and the fact that the claimant was already in the road when the bus moved off made her more culpable. Liability was apportioned on a 60/40 basis in favour of the claimant. Eagle v Chambers  EWCA Civ 1107 and Lunt v Kaglifa  EWCA Civ 801 considered.
This case reminds us that in contributory negligence there are two parts: blameworthiness and causative potency. Both have different weight. Although both parties here were to blame, the defendant as a driver was in charge of a potentially dangerous weapon and so should assume a higher responsibility for the accident.