Crossing any road which carries traffic involves taking some kind of risk. And without taking proper care, or by misjudging matters, there are times when you might get it wrong. An approaching car might be going faster than you thought, for example, or another vehicle could suddenly appear from a side street.

But if you have been hit crossing the road as a pedestrian, and think you misjudged how safe it was when you did so, is it still possible to claim compensation for your injuries?

pedestrian crossing the road

The case of Sabir v Osei-Kwabena [2015] EWCA Civ 1213 shows some of the legal issues which can arise in these situations.

The facts of the case

Ms Sabir was attempting to cross a busy suburban road, which was lined with shops. She had just parked her car at the side of the road, got out, and moved to the rear side of the car in order cross. When she had walked about 4 metres into the road she was hit by a car driven by Mr Osei-Kwabena (the Defendant in the case) – who had been approaching from her right side. The point of impact on the car was its front offside.

Ms Sabir suffered life-changing injuries. She sustained head injuries which were described as “the worst sort of traumatic brain injury”. Ms Sabir had also been 5 months pregnant at the time and, following significant abdominal injuries she sustained in the accident, she suffered a miscarriage.

A personal injury claim for compensation was brought on her behalf.

Issues for the court

There were a number of factors which suggested Ms Sabir had been partly responsible for the accident:

  • She had had a clear line of sight to the Defendant’s approaching car.
  • The car had been travelling at the speed limit of 30mph.
  • It was apparent from the facts that she had misjudged her opportunity to cross. It was found she had walked across, instead of running or moving more quickly, and the evidence indicated that if she had had chance to take another pace, she would not have been hit.

On the Defendant’s behalf, it was argued that Ms Sabir’s actions showed a substantial want of care and that they amounted to deliberate risk-taking, given that she had seen the approaching vehicle but not crossed the road more speedily.

The court’s decision

At trial, the judge accepted that Mr Osei-Kwabena had been negligent, finding that:

  • He also had a clear view to Ms Sabir as she crossed the road.
  • At the time she began crossing, he had been over 35m away from her, and could have prevented the accident by simply taking his foot off the accelerator.
  • It followed that he had not been keeping a proper lookout – something which a driver exercising reasonable care and skill would have done when travelling at 30mph along a busy shopping street.

However, the judge also recognised that Ms Sabir’s misjudgement had contributed in part to the accident and her injuries. He held her to be liable for contributory negligence and assessed her to be 25% responsible. The implications of this decision are explained later on.

The Defendant appealed the decision, arguing that Ms Sabir should share a greater portion of responsibility for the accident.

The Court of Appeal

On appeal, it was assessed whether the trial judge’s decision had been “plainly wrong” or such that it could not have been arrived at reasonably based upon the evidence presented.

In dismissing the appeal, Tomlinson LJ held that the trial judge’s conclusions had been firmly within the range of reasonable decision making, adding that “I do not think that my own assessment would have been markedly different, if at all”.

In particular, the Court of Appeal was persuaded by how each party had handled their legal duties of care and responsibility to other road-users. They acknowledged it had not been a case where Ms Sabir had suddenly stepped out into the road, forcing the Defendant to react. Instead, she had “slightly misjudged her own safety. She did not put the Defendant at risk.”

“The Defendant by contrast failed to keep a proper lookout in circumstances where he could expect pedestrians to attempt to cross the road to reach shops on the other side or simply to be in the road in connection with parked vehicles and where he was driving at the maximum speed permitted. He did not just fail to see the Claimant and to react within such timescale as was reasonably to be expected, he failed to see her at all over [a significant period].”

As such, the trial judge’s decision that Ms Sabir was 25% responsible would stand.

The effect of contributory negligence

Where a claimant is found to share some responsibility for their injuries, it does not mean that their claim fails. Contributory negligence has the effect of reducing the compensation that is awarded. In Ms Sabir’s case, she would still receive compensation for the terrible consequences of the accident, but the amounts would be reduced by 25%.

In conclusion

Cases where pedestrians are deemed to be partially at fault for their own injuries will depend heavily upon their own circumstances. Assessing how much someone’s actions have contributed to their own misfortune is not an exact science.

However, even though contributory negligence does reduce a compensation award, it still provides some measure of compensation. If you are worried about making a claim for an accident, which you believe to be partially your own fault, it is still worth seeking specialist legal advice to see what your position might be.

To find out more about pedestrian accident claims, have a look at our detailed pedestrian accident claims guide on this.

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Catherine Reynolds
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