By Kate McKinlay
Inebriated pedestrians : a fresh view on foreseeability and novus actus interveniens
A consideration of the Court of Appeal’s recent decision in Scott v Gavigan  EWCA Civ 544 before Elias LJ, Clarke LJ and Simon LJ.
This is not an unheard of set of facts. Briefly an inebriated pedestrian claimant stepped out onto the road 10 metres after a pedestrian crossing and ran across the road and into the defendant motorcyclists correctly proceeding vehicle. A collision ensued and resulted in serious injuries to the pedestrian claimant. The trial judge decided that the claimant was entirely responsible for the accident.
AT FIRST INSTANCE
The trial judge made the following findings:-
- At the point in the road where the Defendant first saw the Claimant an ordinary prudent motorcyclist would have been travelling at slower than 30 mph (the speed the Defendant was travelling). The Defendant should have been braking earlier so as to be travelling at no more than 20 mph by the time he first saw the Claimant in the act of crossing the road [para 8] but that that was the limit of his negligence [para 11]
- On the balance of probabilities the collision would not have occurred had Mr Gavigan’s speed been 20 mph and not 30 mph.
- The Claimant was very drunk
- The claimant’s own reckless behaviour was the sole and effective cause of the accident and that it amounted to a novus actus interveniens [para 11]
The Claimant appealed.
The claimant argued on appeal, as he had at first instance, that the judge was wrong to find that the risk that presented itself to the defendant was not a risk that he should reasonably have foreseen. He argued that it was entirely foreseeable that a pedestrian may attempt to cross the road as the Claimant did on this occasion, relying on a delicious quote from Clerk & Lindsell to bolster his argument: – A driver is not of course bound to anticipate folly in all its forms, but he is not entitled to put out of consideration the teach of experience as to the form those follies commonly take” [para 13]. The fact that the claimant had passed the pedestrian crossing before he chose to cross the road did not absolve the defendant as it was foreseeable that people may well cross the road in the vicinity of the crossing rather than on it.
The Court of Appeal unanimously rejected this argument and concluded that the judge was entitled to make the finding of a “want of foreseeability” that he did. The trial judge was entitled, on the facts, to conclude that it was not reasonably foreseeable that the C would run out into the road after the pedestrian crossing. Clark LJ’s words were that ‘It was not incumbent upon the defendant to take steps to avert a risk of which he neither nor should have been aware” [para 18].
The claimant’s appeal for an apportionment on this basis was therefore dismissed.
The defendant conversely argued that the judge had been wrong to find that the defendant should have been travelling more slowly in the circumstances. On this point Clarke LJ agreed. He accordingly reversed the trial judge’s finding that the Defendant ought to have been travelling at 20mph not 30 bearing in mind that D’s evidence (which was accepted) was that he could see a considerable distance ahead and was paying attention; there were no apparent dangers and he had left a gap between his moped and the cars parked to his left to avoid any problem that might arise if an offside door was opened. Neither was there any evidence that his speed would have caused him difficulties navigating the bump and bollards of the pedestrian crossing.
The claimant also challenged the judge’s conclusion that his conduct amounted to a novus actus interveniens. The Court of Appeal agreed with the claimant in this regard and gave dicta, that, contrary to the trial judge’s conclusion, the Claimant’s gross carelessness was not equivalent to a novus actus interveniens. Clarke LJ recited the arguments in Spencer v Wincanton Holdings Ltd  EWCA Civ 1404 and Simmons v British Steele plc  UKHL. 20 and concluded as follows:-
“it would seem to me to be right to require pretty exceptional circumstances to deny a claimant who has surmounted the hurdles or foreseeability, negligence and causation any remedy at all….. These might arise if, for instance, a group of youths were engaged in goading each other to run as close to oncoming traffic as was possible” (para 34).
- Don’t expect to win a novus actus interveniens argument as a defendant unless you have really exceptional facts .
- Foreseeability does require a party to anticipate every act of foolishness
- Travelling at the speed limit (30 mph) in the presence of pedestrians is not of itself negligent and was not in this instance