The judge was plainly wrong to hold a pedestrian who was struck by a car more to blame for the accident than the driver and the judge's finding of 60 per cent contributory negligence was replaced by one of 40 per cent.Appeal by the claimant in personal injury proceedings from the judgment of Moses J in which he held that she was 60 per cent contributorily negligent for serious injuries sustained when she was struck by a car driven by the defendant. The accident took place in June 1989 at about 11.30pm of Marine Parade which was dual carriageway with two rows of parking spaces between the two carriageways. The road was virtually straight and the street lighting good. On that day the weather was fine. The claimant was 17. She was dressed in light clothing and was walking down the southbound carriageway and had been doing so for long enough for bystanders and other drivers to be concerned for her safety and to urge her to stop. She was in an emotional state and was not walking in a straight line. She was struck by the offside of the defendant's car which was in the offside lane. He was driving at about 30-35 mph. He failed a roadside breath test but at the police station he was under the drink driving limit. The judge found that had the defendant exercised the standard of care of a reasonable driver he would have seen the claimant earlier and could have taken avoiding action. The judge found that the claimant was drunk and emotional and placed herself in a dangerous position and held her 60 per cent to blame. The claimant appealed against the 60 per cent apportionment. The respondent accepted that on the evidence the most that could be said was that the claimant had probably had a drink or two.HELD: (1) It was rare for a pedestrian to be found more responsible than a driver unless the pedestrian had suddenly moved into the path of an oncoming vehicle. There was no evidence in the case that the claimant had staggered or changed direction suddenly. (2) The court had consistently placed a high burden on drivers to reflect the fact that the car was potentially a dangerous weapon. The driver's conduct in this case was very much more causatively potent than that of the claimant. Car drivers had to be on the look out for pedestrians in the road. It was to be expected that there might be pedestrians in that particular road at that time. On the judge's findings the defendant would have failed to see and avoid any pedestrian, including one whose conduct could not be criticised. (3) The claimant's carelessness for her own safety was sufficiently blameworthy to justify a finding of contributory negligence but the defendant was at least if not more blameworthy than her and the judge was plainly wrong to hold the claimant more responsible than the defendant. The right finding of contributory negligence was 40 per cent.Appeal allowed.

[2003] EWCA Civ 1107