Neutral Citation Number: [2011] EWCA Civ 623
Case No: B3/2010/2697
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NEWCASTLE UPON TYNE COUNTY COURT
HHJ WALTON
9NE10902
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 26/05/2011
Before :

LORD JUSTICE RIX
LORD JUSTICE HOOPER
and
LORD JUSTICE STANLEY BURNTON
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Between :

	WALDEMAR BELKA	Appellant	
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	JOSEPH LAWRENCE PROSPERINI	Respondent	

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MR SIMON TAYLOR QC and MS LISA SULLIVAN (instructed by Irwin Mitchell LLP) for the Appellant.
MR RICHARD LYNAGH QC and MR TIMOTHY SMITH (instructed by Total Law Solicitors) for the Respondent.

Hearing date: 17th May 2011
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Judgment

Lord Justice Hooper : 
1.	At the conclusion of the hearing we announced our decision that the appeal was dismissed.
2.	The appellant/claimant was injured when hit by a taxi driven by the respondent/defendant.  Following a trial on the issue of liability, HHJ Walton in a carefully reasoned judgment held that the appellant was two thirds to blame and the respondent one third to blame. There is no challenge to the judge’s findings of fact. 
3.	The appellant was struck by the front of the taxi and thrown up on to its bonnet breaking the windscreen. The collision took place in the early hours of the morning whilst the appellant was on an unregulated crossing on a dual carriageway, the A193 Byker bypass in Newcastle-upon-Tyne. Whilst pedestrians may cross at this point, they do not, as the judge found, have precedence over vehicles. 
4.	The appellant, dressed in denim, was on his way home accompanied by Mr Lanik after they had been being in a public house where, on the evidence, they had drunk about four pints of beer. 
5.	The respondent was tested for alcohol.  The reading “was below zero”.
6.	The A193 Byker bypass is one of five roads leading into and out of a roundabout. The respondent entered the roundabout from a road (Millers Road) almost opposite the entrance to the bypass. For the respondent the bypass was his third exit.   The accident occurred on what was for the respondent the nearside lane of the bypass. Just before the impact the respondent’s speed was about 25 to 30 mph and therefore within the speed limit.
7.	The appellant and Mr Lanik had crossed the two lanes of the bypass which led into the roundabout and reached the “refuge” half way across it. 
8.	The judge found that the respondent should have seen the two men on the refuge at least when the respondent was about 30 metres away from the refuge. At that point the respondent would have been crossing the entrance of what was for him the second exit. 
9.	The judge found that it was likely that Mr Lanik deliberately waited for the taxi to pass, whereas the appellant decided to run across the road. In the words of the judge the appellant “took a risk setting off when, unless the driver took some avoiding action, an accident was likely”.  Implicit in this finding is a finding that the appellant deliberately took the risk of trying to cross the road in front of the taxi.
10.	The respondent gave evidence that he saw from about 25 to 50 metres away only one person on the refuge, who must have been Mr Lanik. He first saw the appellant at the last moment in a position on the offside front of his car. He braked and swerved to the right but was unable to avoid a collision.  
11.	The judge found that the respondent should at about the 30 metre mark have seen both men on the refuge. Even on the respondent’s account of seeing only Mr Lanik, the respondent should have taken his foot off the accelerator as a precaution against any untoward movement by the pedestrian. The judge concluded that “with a better look out, and a slight easing of speed I am satisfied that the accident would have been avoided” because the appellant would then have crossed the road in front of the taxi.  
12.	It is submitted by Mr Taylor QC on behalf of the appellant that the judge should have found the respondent’s degree of blameworthiness was “very high” and certainly more than that of the appellant. I cannot agree. The fault of the respondent was not to ease off on the accelerator in anticipation of the risk that the pedestrian, whom he had seen or ought to have seen, might decide to cross the road in an untoward way. The fault of the appellant was to take a deliberate risk of an accident in running across the road in front of the taxi which had the right of way. In my view the appellant was far more to blame than the respondent. 
13.	It is further submitted by Mr Taylor that the judge failed properly to approach the issue of causative potency. As to that the judge said:
24.       In terms of causative potency the apportionment is equal in the sense that both the action of the pedestrian and the driver’s failures as already identified contributed equally to the collision.  
14.	Mr Taylor criticises this conclusion. 
15.	Section 1 of the Law Reform (Contributory Negligence) Act 1945 provides:
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 ... (emphasis added).
16.	A convenient description of what is known as causative potency is to be found in a passage in the speech of Lord Reid in Stapley v Gypsum Mines [1953] AC 663, at page 681 to which we were referred by Mr  Lynagh QC.
A court must deal broadly with the problem of apportionment and in considering what is just and equitable must have regard to the blameworthiness of each party, but the claimant’s share in the responsibility for the damage cannot, I think, be assessed without considering the relative importance of his acts in causing the damage apart from his blameworthiness.
17.	In that case Stapley was working in an underground “stope” when the roof collapsed and killed him. He and a fellow employee, Dale, had tried to make the roof safe but, having failed to do so, both continued to carry on their normal work of breaking up gypsum rock. Dale was working a very short distance away in an area where the roof was not dangerous and did not collapse.  Stapley succeeded against his employer because of Dale’s failure to take steps to prevent the accident.  Lord Reid continued:
“It may be said that in this case Dale was not much less to blame than Stapley, but Stapley’s conduct in entering the stope contributed more immediately to the accident than anything that Dale did or failed to do. I agree with your Lordships that in all the circumstances it is proper in this case to reduce the damages by 80 per cent, and to award 20 per cent of the damages to the appellant.
18.	Mr Taylor submits that the judge failed to take into account in deciding causative potency for the damage the fact that the respondent was driving what has been described as “potentially a dangerous weapon” (Latham LJ in Lunt v Khelifa [2002] EWCA Civ 801, para. 20).  Mr Taylor referred us to Eagle v Chambers [2003] EWCA Civ 1107.  Hale LJ, as she then was (and with whom the other members of the court agreed), said (in para. 15) that the “potential ‘destructive disparity’ between [a pedestrian and a car driver] can readily be taken into account as an aspect of blameworthiness.” Indeed Hale LJ said (in para. 16) that: “It is rare indeed for a pedestrian to be found more responsible than a driver unless the pedestrian has suddenly moved into the path of an oncoming vehicle”. 
19.	In my view this is a case where, on the judge’s findings, the pedestrian “has suddenly moved into the path of an oncoming vehicle”.  Or, to use the words of Lord Reid, this is a case where the appellant’s conduct in deliberately taking the risk of trying to cross the road in front of the taxi contributed more immediately to the accident than anything that the respondent did or failed to do.  
20.	Furthermore, it is said, that the judge should have taken into account, in resolving the issue of causative potency, that even if the appellant had been crossing the road non-negligently, the accident would still have happened. Mr Taylor points to Eagle v Chambers. In that case Hale LJ considering the issue of causative potency said (in para. 17) “that the defendant would have failed to see and have failed to avoid any pedestrian, including one whose conduct could not be criticised.”  In that case, so it was held, the defendant driver had had ample opportunity to see the claimant pedestrian dressed in light coloured clothing walking along the road in an area where people could, without criticism, be walking along the offside edge of the road looking for their parked cars. That, in my view, is not this case. It is very difficult to imagine how the respondent would have collided with the appellant if the appellant had been crossing the road non-negligently rather than running across the road in the path of the oncoming taxi.  
21.	As we have seen, the judge apportioned the causative potency equally “in the sense that both the action of the pedestrian and the driver’s failures as already identified contributed equally to the collision.”  The use of the word “collision” in paragraph 24 could be criticised but, apart from that, it cannot, in my view, be said that the judge was “plainly wrong” in his apportionment.   
22.	For these reasons I would dismiss the appeal.
Lord Justice Stanley Burnton
23.	I agree.
Lord Justice Rix
24.	I also agree.