How careful must a driver be?

Children playing in street – take extra care

Where a pedestrian is struck by a vehicle the driver of the vehicle is usually to blame for failing to take reasonable care. As ever there are arguments of contributory negligence against the pedestrian.

The driver is not always to blame as in a case where the pedestrian could not have been seen and gave the driver no chance to stop. Contributory negligence allows for the range of fault between driver and pedestrian.

A recent case decided by the Court of Appeal involved a car being driven slowly in a quiet street where children were playing ball.

The circumstances of this car v pedestrian accident were summarised by the Court. I have extracted the most important bits.

• The driver was returning work after lunch intending to park his car in the car park at the far end of the road.
• He drove into the road quite slowly, probably at about 10 mph and in a low gear.
• He saw a group of young children playing on the right hand side of the road so slowed further and positioned his car very close to the left side of the road; the judge was to describe his position as ‘abnormally close’ to the left hand kerb.
• The child (9 years old) ran across the road in front of the car from right to left, chasing a ball – about 15 metres from the entrance to the road.
• The claimant denied seeing the car approaching but the judge found that he must have done.
• The claimant reached the left pavement and continued to play with the ball.
• The defendant saw him kick the ball against the wall again while on that pavement. He was not looking towards the car but was concentrating on the movement of the ball.
• The claimant said (and the judge accepted) that he expected to be able to continue the game without leaving the pavement.
• To control the ball, he moved backwards to the very edge of the pavement, so much so that the heel of his left foot overhung the edge of the kerb.
• The child said that he did not step into the road. The driver thought the child had stepped into the road, although only by one pace. The judge did not resolve that issue of fact, saying that it did not make any difference.
• The driver thinking that the claimant would not leave the pavement continued his way forward, very close to the kerb. He must have passed the claimant at the moment when his foot was either protruding over the edge of the kerb or was just in the road.
• The car struck the back of the claimant’s foot and caused him quite serious injury including a fracture of the lower ends of both the tibia and fibula. The car stopped although there was a dispute as to how far it travelled after the impact.

So what do you think? How would you have driven in the situation?

The Judge decided in favour of the driver. He found there was no need to sound the horn or to stop despite seeing the child cross a short distance ahead of him, and then continue to play with the ball. Sounding the horn or stopping were a counsel of perfection in the Judge’s mind.

So the case went to the Court of Appeal and the Claimant succeeded. The standard of care owed by a driver to a pedestrian (as to any other road user) is to take such care as is reasonable in the circumstances.

The strongest argument for the child was that the driver was dealing with a developing situation. The child crossed the road after the ball and then continued to play with the ball. The driver should have seen the possibility of the ball and the child coming back into the road and should not have continued without being sure the child was reacting to the presence of the car.

It is a difficult balancing act for a Judge. Sympathy says most cases will go in favour of an injured pedestrian, particularly a pedestrian child. The driver is in control of something heavy and strong, and which cannot turn or stop on a sixpence. What the Courts try not to do is impose a counsel of perfection with the benefit of hindsight. The driver must satisfy the test of taking such care as was reasonable in the circumstances.

Most of us as drivers would say we did not have a chance to stop. What a Court will do is look at your speed, the road, your stopping distance, and the likely risks. Perfection is not required of a driver, but an appreciation of the situation and reasonable care certainly is.

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