Scott v Gavigan

Factual and Procedural Background

The opinion concerns an appeal by the Plaintiff against a decision by Mr Recorder Hollington QC, who found that the Plaintiff was wholly responsible for an accident involving the Plaintiff running across a road into the path of a moped driven by the Defendant. The Plaintiff was granted leave to appeal only on the issue of liability, not on findings of fact. The accident occurred on a Sunday evening on a 30 mph road with an informal pedestrian crossing marked by bollards and speed bumps. The Defendant was riding a 125cc moped at approximately 30 mph, and the Plaintiff, intoxicated, ran across the road approximately 10 metres past the crossing, into the Defendant's path. The Defendant attempted to avoid the collision but clipped the Plaintiff’s leg, causing significant injury. The judge found the Defendant should have been travelling slower but concluded the Plaintiff's intoxication and reckless crossing were the sole cause of the accident. The Plaintiff denied intoxication, but the judge found the Defendant a more reliable witness. The Plaintiff admitted fault immediately after the accident. The Plaintiff appeals the judge’s decision on liability.

Legal Issues Presented

1. Whether the judge erred in finding the Plaintiff wholly responsible for the accident.
2. Whether the risk of the Plaintiff crossing the road where he did was reasonably foreseeable by the Defendant.
3. Whether the Defendant’s speed and failure to brake earlier constituted actionable negligence.
4. Whether the Plaintiff's conduct constituted a novus actus interveniens breaking the chain of causation.

Arguments of the Parties

Appellant's Arguments

• The Defendant’s speed of 30 mph was negligent and he should have been travelling at 20 mph when first seeing the Plaintiff.
• The risk of a pedestrian crossing the road near the informal crossing was foreseeable, including the Plaintiff’s crossing beyond the bollards.
• The judge should have apportioned liability rather than finding the Plaintiff entirely responsible.
• Reliance on legal principles that drivers must anticipate some degree of folly or carelessness by others on the road.
• Challenge to the judge’s finding that the Plaintiff’s conduct constituted a novus actus interveniens, arguing that the Plaintiff’s conduct should not entirely absolve the Defendant.

Respondent's Arguments

• The judge’s findings were a reasonable value judgment supported by the facts, including the Plaintiff’s intoxication and reckless crossing.
• The Defendant could not reasonably have foreseen the Plaintiff running across the road 10 metres past the crossing and into the Defendant’s path.
• The Defendant’s failure to brake earlier was a minimal negligence that was not causative of the accident.
• The Plaintiff’s gross carelessness was the sole effective cause of the accident, constituting a novus actus interveniens.
• Even if the Defendant had been travelling at 20 mph, the collision would likely have still occurred due to the Plaintiff’s sudden crossing and proximity.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the judge’s factual findings and legal conclusions with particular focus on foreseeability, negligence, causation, and novus actus interveniens. The judge found the Defendant was negligent in not braking earlier and travelling at 30 mph near the crossing, but the court held that this negligence was minimal and not causative of the accident.

The central point was whether the Defendant could reasonably foresee the Plaintiff running across the road 10 metres past the pedestrian crossing into the Defendant's path. The court agreed with the judge that the Defendant, having seen the Plaintiff walk past the crossing and continue along the pavement, had no reasonable basis to anticipate the Plaintiff’s sudden crossing. The Plaintiff gave no indication of intent to cross and appeared sober and orderly until the moment of crossing, which was an egregious and unforeseeable act.

The court also considered the legal principle that a defendant must anticipate some carelessness but found that the Plaintiff’s conduct was so reckless and intoxicated that it constituted a novus actus interveniens, breaking the chain of causation and absolving the Defendant from liability for the accident. The court relied heavily on established case law, including Spencer v Wincanton and McKew v Holland, to frame this analysis.

While the Defendant’s speed was found to be slightly above the ideal prudent speed, this was not a legally operative cause of the accident. The Plaintiff’s reckless crossing was the sole effective cause. The court rejected the Plaintiff’s submission that liability should be apportioned, concluding that no reasonable driver could have foreseen the risk that actually materialised.

Holding and Implications

The court DISMISSED THE APPEAL, upholding the judge’s decision that the Plaintiff was entirely responsible for the accident. The Defendant’s minor negligence in speed and braking was insufficient to establish liability, given the unforeseeability of the Plaintiff’s reckless crossing.

The direct consequence of this decision is that the Plaintiff bears full responsibility for the accident and cannot recover damages from the Defendant. No apportionment of liability was warranted. The court did not establish any new legal precedent but applied established principles of foreseeability, causation, and novus actus interveniens to the facts of this case.