Practice and Procedure


PUBLISHED December 16, 2003

Although finding that the defendant's choice to reverse her car along a constricted and ill-lit road at night had not been negligent in the circumstances, the judge had been entitled to find that the defendant had been negligent in failing to keep a proper lookout.The defendant (B) appealed against a finding of negligence against her or, alternatively, against the apportionment of contributory negligence in a claim arising out of a road traffic accident. As she was reversing her car at night, B ran over the claimant (G). B had reversed from a parking spot outside her home in a cul-de-sac, looking over her right shoulder to ensure that she stayed clear of parked cars. The road was lit by a single sodium street lamp. B had continued to reverse for about 35 yards, still looking over her right shoulder, and as she manoeuvred past a shrubbery bed her rear nearside wheel had run over G, who was lying in the roadway in a drunken stupor. The trial judge found that B was not negligent in electing to reverse down the cul-de-sac, but that, in failing to look over her left shoulder or in her nearside wing or rearview mirror, she had failed to keep an adequate lookout. However, the judge found G partly to blame and apportioned liability 60 per cent to G and 40 per cent to B. B submitted that (1) the trial judge had applied to B's driving a standard of perfection and not the standard of the ordinarily prudent motorist, and that there had been no reason for B to anticipate an inert pedestrian in her reversing path; and (2) the evidence had not entitled the trial judge to suppose that B would have seen G had she looked in her nearside mirror and to conclude that B's negligence in this respect was causative of the accident.HELD: (1) It had been open to the trial judge to conclude that (i) the care needed in travelling down this particular street in reverse gear at night called for particular attention to what might be in the car's path; (ii) B ought to have checked in her nearside wing mirror as well as over her right shoulder; and (iii) had she done so she would more probably than not have seen G lying in the road in time to stop. (2) B's failure to do so had been both negligent and causative of the accident. (3) Once B had been held negligent, the conclusion that G was the more blameworthy of the two and was 60 per cent contributorily negligent had by no means been unfair to B.Appeal dismissed.

[2003] EWCA Civ 1819