Motor insurers are keen to keep up the pressure up on the courts to exonerate drivers or at least to ramp up the findings of contributory negligence in cases where pedestrian claimants wrongly walk into the road in front of approaching vehicles. However, three recent decisions show the pace of change, if any, to be glacial.
First, there was a set back for motor insurers in Smith v Chief Constable of Nottinghamshire  EWCA Civ 161. The trial judge found the Claimant 75% to blame for walking out in front of an approaching police car on an emergency call with its flashing lights and siren activated. The Court of Appeal substituted a decision which fixed her with just one third of the blame. Although an earlier CA decision (Keyse v Commissioner of Met Police, 2001) had stated that “pedestrians can usually be expected to follow the relevant advice in the Highways Code” – ie to stay off the road when police cars on emergency calls are approaching – here the police driver was held to be travelling much too fast in a lively city centre on a Friday night, surrounded by revellers.
Second, there was the surprising first-instance High Court decision in Tavares v Hudson-Rotin (2012) Lawtel 13.3.12. The Claimant had crossed a single track road in a busy shopping area into the path of the Defendant, whose vehicle struck him. The Defendant driver had been travelling at 28-30 mph, whereas there was a 20 mph speed limit and a safe maximum would have been 15 mph. However, the Claimant failed to look out and should have waited to cross the road. The judge awarded just 15% contributory negligence against him.
Finally, in Rehill v Rider Holdings Ltd  EWCA Civ 628 the Claimant pedestrian disregarded the “red man” light at a pedestrian crossing and walked out from the pavement in front of an approaching bus which had the right of way and was pulling off at slow speed. Nevertheless, the Court of Appeal upheld trial judge in finding the driver negligent in failing to brake sooner to avoid the Claimant being crushed under the front wheel. The Defendant argued for contributory negligence of 80%, the trial judge awarded it at a third and the Court of Appeal settled on 50%.
In two of these cases a guiding principle which weighed heavily and which still seems to govern these cases was the comment of Hale LJ in Eagle v Chambers (2003):
“A car can do so much more damage to a person than a person can usually do to a car. …The potential “destructive disparity” between the parties can readily be taken into account as an aspect of blameworthiness. …
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.”