Success for Niall Maclean in the Court of Appeal
The Court of Appeal today handed down judgment in the case of Scott v Gavigan  EWCA Civ 544. Niall Maclean acted for the successful Defendant at first instance and in the Court of Appeal.
On the evening of 13 June 2008 the Defendant was riding his motorcycle along Valley Road in Streatham. On the pavement on the opposite side of the road, walking towards him, was the Claimant. The Defendant watched the Claimant walk past an informal pedestrian crossing, which consisted of two bollards in the middle of the road each on a small raised kerbed island with a gap between the islands for pedestrians to stop half way across the road. When he was about 10 metres past the crossing and about 10 metres from the Defendant’s motorcycle the Claimant suddenly and without warning ran out into the road diagonally towards the Defendant’s motorcycle. The Defendant tried but failed to avoid a collision. The Claimant suffered serious injuries to his right leg.
Decision at first instance
After a trial in Central London County Court on 11 and 12 November 2013, Mr Recorder Hollington QC dismissed the Claimant’s claim. The judge found the Claimant to have been an unreliable witness, and rejected his evidence that he had attempted to cross the road at the pedestrian crossing. The judge accepted the Defendant’s case that the Claimant, heavily intoxicated, ran out into the road diagonally towards the Defendant’s motorcycle in the manner described above.
However, the judge also criticised the Defendant’s driving. He felt that the Defendant’s speed at the material time (at or slightly below the speed limit of 30mph) was too fast. At the point when the Claimant ran into the road the Defendant was about 20 metres from the crossing and, having regard to rules 124 to 126 of the Highway Code and the stopping distances set out therein, the Defendant should have been doing 20mph in order to be able to stop for the crossing had he needed to. Had the Defendant been doing 20mph the accident would probably have been avoided, albeit the Defendant may still have crashed in striving to avoid the Claimant.
In dismissing the claim, the judge held that the risk that presented itself to the Defendant – that the Claimant would run out into the road at his motorcycle after walking 10 metres past the pedestrian crossing – was not one he ought reasonably to have foreseen. Further, borrowing from what is now section 2-122 of Clerk and Lindsell on Torts, the judge held that the conduct of the claimant was so wholly unreasonable and of such overwhelming impact that it eclipsed the Defendant’s wrongdoing and constituted a novus actus.
Decision on appeal
The Claimant appealed to the Court of Appeal on the basis that the judge was wrong to find him solely to blame. Leave to appeal was granted by Fulford LJ.
After a hearing on 24 May 2016, the Court of Appeal (Elias, Christopher Clarke and Simon LJJ) unanimously dismissed the appeal.
The Claimant relied on dicta from well-known cases such as Lang v LTE  1 WLR 1168 to the effect that drivers must keep in mind the common follies of other road users and drive accordingly. For this reason, the judge was wrong to find the risk that presented itself to the Defendant was not one he ought reasonably to have foreseen. The Court of Appeal rejected this argument, and held that the judge was entitled to reach the conclusion he did on foreseeability. The Defendant had watched the Claimant walk down the road for a considerable distance, and he had given no indication he intended to cross. He walked past an obvious crossing point. His actions were an egregious folly, not a commonplace one.
The Court of Appeal also upheld the Defendant’s argument that, based on the facts as found, the judge should not have criticised his driving. All the judge’s reasons as to why the Defendant should have been travelling at 20mph were considered and rejected by the Court of Appeal. In particular, rules 124 to 126 of the Highway Code were found to have no application since the Defendant was approaching an informal crossing he could see to be clear.
The Court also heard argument on the application of novus actus interveniens, particularly in light of the development of the doctrine undertaken by the Court of Appeal in Spencer v Wincanton Holdings  EWCA Civ 1404. In common with much of how the law of causation in tort has developed in recent years, Spencer emphasises how novus actus is infused with policy considerations and, in particular, notions of fairness. It is not possible to lay down bright lines demarcating novus actus cases from those where there should merely be a finding of contributory negligence. Given its rulings on foreseeability and blame in Scott v Gavigan, the Court of Appeal declined to rule on whether the judge was correct to find the Claimant’s actions constituted a novus actus. Christopher Clarke LJ did however suggest it would take “pretty exceptional circumstances” to deny any remedy at all to a claimant who had surmounted the hurdles of foreseeability, negligence and causation.
Niall Maclean was instructed for the Defendant at first instance and in the Court of Appeal by Nicholas Connolly and Jamie Azim of DWF LLP.