Injured whilst on the pavement – should there be strict liability?

As a personal injury solicitor representing victims of road traffic accidents, I am shocked at how often I represent pedestrians who have suffered injury from passing vehicles whilst standing on the pavement. Many of my clients, who are injured in this way, are injured by a passing bus.

What is worse is that these claims are too often defended. This means that the injured person is put through a lengthy claim and costs are incurred unnecessarily. It is my view that the law in this area is clear and as a result, liability should be admitted at the earliest opportunity so that the focus can shift to the injured person and their recovery rather than liability arguments which simply add to their suffering following a serious accident.

I intend to provide a summary of the law in this area in order to demonstrate the clear principles that have been implemented by the Courts. I consider that there should be a principle of strict liability in respect of these claims. That is, where an individual is struck by a vehicle whilst stood on the pavement, a pedestrian safe zone, that liability is strict and there should be no defence in such circumstances.

Laurie v Raglan Building Company Limited [1942] 1 KB 152

This was a claim brought by a widow following her husband’s death. Her husband had been stood on the pavement at a bus stop when a ten-wheeled, heavily laden lorry skidded on a road covered in frozen snow and killed her husband. It was held at first instance that the Claimant had failed to establish liability and judgment was entered in favour of the Defendant.

On appeal, it was held that in considering whether a prima facie case of negligence had been established, no distinction should be drawn between the position where the wheels of a vehicle actually mount the pavement and that where a portion of the vehicle sweeps across the pavement. In each case the vehicle is where it has no right to be. No vehicle is entitled to manoeuvre itself so that any part of it projects over the pavement and cause injury to pedestrians who are lawfully there.

Watson v Thomas S. Whitney & Co Ltd and another [1966] 1 WLR 57

The Claimant was walking along the pavement in the dark, approximately 6 inches from the edge. A van was pulling in close to the pavement in order to drop a passenger off, when the door handle of the van struck the Claimant on the arm.

It was held at first instance that the Claimant was wholly to blame for the accident by walking so close to the edge of the pavement when it was unnecessary to do so.

On appeal, it was held that the pavement should give security to those using it from vehicles using the highway, and where a vehicle overlapped the pavement and struck a person on the pavement there was liability in negligence on the driver of the vehicle.

Chapman v Post Office [1982] RTR 165

The Claimant in this case was stood on the kerb of a pavement at a bus stop when she was hit by a wing mirror of a post office van passing along the road, close to the pavement.

At first instance, the judge found that the Claimant and Defendant were equally to blame for the accident.
On appeal, it was held that in standing on the pavement, even if she leaned out, or had her back turned to the oncoming

traffic, or went an inch of two into the roadway, the Claimant was not negligent. The fact that the wing mirror had hit the Claimant whilst she was standing legitimately on the kerbside meant that the driver was at fault and she was not.

Osei-Antwi v South East London & Kent Bus Company Ltd [2010] EWCA Civ 132

The Claimant was stood on the corner of a road near to a bus depot, waiting to cross the road. She was stood on a designated pedestrian area, outside of some safety railings. A bus attempted a sharp turn into the depot, and the rear of bus hit the Claimant and crushed her against the railings.

At first instance, the court held that the Claimant was one third to blame for the accident. The Claimant appealed against the finding of contributory negligence.

It was held in this case on appeal that the Claimant was stood in a designated area where vehicles were not meant to be and where, according to the Defendant, they did not normally go. It was considered that the claim was all about whether the Claimant was standing on the road or on the pavement. If she was on the road, she may have been partly to blame or to blame for the accident.

If she was on the pavement, approximately in the position she said she was, there could be no apportionment of blame.

McEwan v Lothian Buses Plc [2014] CSIH 12

This case concerned an individual who was struck by the wing mirror of a bus whilst walking along the pavement. The Claimant walked to the edge of the pavement, intending to cross the road. As he turned to his right to check if it was safe to cross, he was struck in the face by the Defendant’s wing mirror.

It was held at first instance that it was not reasonably foreseeable that the Claimant would change direction and move to the edge of the pavement and that the Defendant therefore had no opportunity to react and avoid the accident.

On appeal, it was held that the Claimant had successfully established a prima facie case of negligence. The Claimant was on the foot pavement where, as a pedestrian, he was entitled to be and prima facie not at risk of being struck by a motor vehicle.

The Court was of the opinion that drivers have to take reasonable care by driving at a speed, manner and position to avoid hitting a pedestrian with part of the bus encroaching over the pavement.

Whyte v Bluebird Buses Ltd [2015] CSOH 56

The Claimant, a schoolboy aged 11, brought a claim for personal injury when he was struck by a bus whilst standing at a bus stop. The front nearside of the bus encroached over the edge of the pavement striking him. In this case, the Claimant was standing on the kerb very close to the edge with the top half of his body overhanging the kerb.

It was held that the bus driver was negligent in that he, having seen the Claimant stood on the edge of the pavement, proceeded to drive the bus in such a way as to hit him standing on the kerb. In such a case, there was no room for contributory negligence.

Conclusion

As evidenced above, the case law is clear. A pedestrian is entitled to be safe from motor vehicles when standing on the pavement. My view and interpretation of the decisions above is that it does not matter if a pedestrian is stood in the centre of the pavement, or at the edge, they are entitled not to suffer injury as a result of being struck by a motor vehicle. Where a pedestrian is struck by a motor vehicle whilst standing on the pavement, there is a prima facie case of negligence. It is then for the Defendant to provide evidence to displace that presumption of negligence.

It is my opinion that there should be strict liability in respect of these cases. The Court has so far been reluctant to make such a finding. In the case of Osei-Antwi the Court declined to confirm if the case of Chapman provided a principle of law that a pedestrian who is struck when standing on a pavement can never be held to blame. Such a finding would not only encourage Defendants to deal with such claims more reasonably and accept liability at an early stage, but it may also encourage drivers to take more care when driving close to pedestrians to ensure that they are not needlessly injured in accidents which could easily be avoided.

If you or a loved one have suffered injury as a result of someone else’s negligence, contact us free of charge and in confidence on 020 3813 5492 or at PersonalInjury@boltburdonkemp.co.uk for specialist legal advice. Alternatively, you can complete this form and one of the solicitors in the Personal Injury team will contact you. You can find out more about the team.