The recent judgment in the case of Parry v Johnson and Another  EWHC 889 (QB) has provided a clear reminder of the law of negligence in England and Wales and an interesting insight on contributory negligence of pedestrians hit by a motor vehicle.
This case related to a road traffic accident which occurred on 13th August 2019 between a tractor and a pedestrian walking on the verge of the road. Mr Parry, the Claimant, was a pedestrian walking with his wife on the verge of a countryside road at around 9pm. Mr Johnson, the first Defendant, was driving a tractor towing an unlit seeding machine which had a 30 centimetre overhang on each side. As the tractor approached the Claimant and his wife, they stepped onto the grass verge to avoid the tractor but the seeding machine hit them as it passed. The Claimant was seriously injured.
The Claimant issued a claim for damages and alleged that the 1st Defendant:
The Defendants, Mr Johnson and his insurer, denied any negligence on the basis there were no other steps that could have been taken. The Defendants also asserted that the Claimant contributed by his own negligence to the accident by being inconspicuous, by failing to face the tractor and by wearing dark clothing.
In order to find out whether there was any contributory negligence on the Claimant’s part, the judge had to address three issues: firstly, whether the claimant was visible; secondly, whether the 1st Defendant’s driving was appropriate and finally, assess the Claimant’s behaviour on the road.
In order to do that, the judge considered all the evidence of fact available, including witness evidence, expert evidence (from an accident reconstruction expert) and police evidence.
The judge would then have to apply the law to the facts. The relevant legal provisions are as follows:
“S.1 Apportionment of liability in case of contributory negligence
(1)Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the Claimant’s share in the responsibility for the damage …”
The guidance states that:
“A failure on the part of a person to observe a provision of the Highway Code shall not of itself render that person liable to criminal proceedings of any kind, but any such failure may in any proceedings (whether civil or criminal) be relied upon by any party to the proceedings as tending to establish or negative any liability which is in question in those proceedings.”
“In law persons driving cars and other mechanically propelled vehicles like tractors owe a duty of care to pedestrians around them who are on the road surface when the car is on the road. In relation to drivers driving vehicles towing dangerous, unlit equipment, which overhangs pavements and grassy verges, that duty is owed to all pedestrians nearby on pavements and grassy verges who may foreseeably be affected by the overhang”.
In his judgement, the judge found in favour of the Claimant and dismissed any allegation of contributory negligence.
Taking into account all the evidence mentioned above, the judge found that, considering the circumstances, Mr Johnson should have been driving at a much lower speed and should have also put on used the main beam headlights. This would have allowed him time to see the pedestrians. It should also be noted that Mr Johnson provided different versions of events on separate occasions and this did not impress the judge.
The judge also considered that the Claimant and his wife were visible, conspicuous and discernible to any reasonably prudent driver. (They were wearing light coloured clothing).
It is interesting to note that the law on contributory negligence is very different in France, in particular where pedestrians are involved. The Loi Badinter applies to these type of accidents and pedestrians have an automatic right to compensation, whether at fault or not, unless they sought the harm intentionally.