In this Article I review a Decision from the United Kingdom, in the England and Wales Court of Appeal (Civil Division) which was delivered on the 19 July 2011. The Court of Appeal comprised the following Judges:
The case involved an Appeal from a Decision of His Honour Judge Armitage, QC in the Oldham County Court.
The facts of the case are as follows: The accident took place on the 28 April 2001 in Clay Street, Oldham. Clay Street is a fairly quiet street some distance from a main road. The first impression is that it is a cul-de-sac about 50 meters long with an industrial building blocking off the far end. Towards the end of Clay Street on the left there is a gateway into a car park which serves the industrial premises at the end of the Street.
The Defendant, Mr Colin Studdard worked for one of the businesses which occupied the industrial premises. He was very familiar with the street and usually parked his car in the car park which is referred to above. Being familiar with the street, he was well aware that local children used the street as a playground.
At the time of the accident in 2001 the Plaintiff was just 9 years old. On the day of the accident he was playing a game called "Walli" which entailed kicking a football against a wall. The only two witnesses to give evidence were the Plaintiff and the Defendant. The Judge found the accident happened in this way. The Defendant was returning to his place of work after lunch and was intending to park his car in the car park at the far end of Clay Street. He drove his car into Clay Street, quite slowly, probably about 10 miles per hour and in low gear. He saw a group of young children playing on the right hand side of the road. He therefore slowed further and positioned his car very close to the left side of the road. As he was doing this, the Plaintiff ran across the road in front of him from right to left chasing a ball.
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 the pavement. The Plaintiff was not looking towards the car but was concentrating on the movement of the ball. The Plaintiff said and the Judge accepted that he expected to be able to continue the game without leaving the pavement. However, in order to control the ball, he moved towards the very edge of the pavement so much so that the heel of his left foot overhung the edge of the kerb. He said he did not step into the road.
The Defendant thought he had stepped into the road, although only by one pace. The Judge did not resolve that of fact, saying that it did not make any difference. The Defendant, thinking the Plaintiff would not leave the pavement continued his way forward, very close to the kerb. He must have past the Plaintiff 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 Plaintiff's foot and caused him quite serious injury including a fracture of the lower ends of both tibia and fibula. The car stopped although there was a dispute as to how far he travelled after the impact. The Plaintiff said that the car travelled its full length past him, he could see the rear number plate as he was sitting injured on the pavement. The Defendant said that he travelled less than half a car's length after the accident. He says that the Plaintiff was by his passenger door. The Judge did not resolve this dispute.
After hearing submissions from solicitors for both parties, the Judge made a verdict in favour of the Defendant. In conclusion, he stated the following:
"In those circumstances, my conclusion is that it was not negligent to fail to sound the horn or to fail to stop. It was sufficient to proceed slowly, alert to the possibility that the child might turn and start to cross the road again. Stepping backwards off the pavement was, in my judgment only an extremely remote possibility."
On appeal, Counsel for the Plaintiff made two points of substance. First, he submitted that the Judge had failed to take account of the real danger presented by the developing situation. The Defendant was driving, albiet slowly, very close to the kerb of a pavement on which a young boy was playing ball. The boy was looking at his ball, not at the approaching car. The Defendant should have appreciated that the way in which events might unfold, was wholly unpredictable. He should have realised that there was a risk that the Plaintiff might act in a foolish way and this was not limited to the risk that he would decide to run back across the road. Accordingly, the Defendant should have either stopped or sounded his horn or both. Instead, he did nothing other than to carry on as before.
Secondly, Counsel for the Plaintiff drew attention to an inconsistency in the Judge's reasoning. Concerning the Plaintiff's actions, he observed that, for an adult to act as the Plaintiff had done would have been folly because an adult ought to foresee that the ball might go out of control and that it might go into the road in front of the approaching vehicle. Yet when the Judge came to scrutinise the Defendant's actions, he declared that it was reasonable for the Defendant to anticipate only the possibility of the boy running back across the road. Stepping back off the pavement (and presumably any other movement) was only a remote possibility. Counsel for the Plaintiff submitted that there was an inconsistency between the Judge's two Statements.
Dame Janet Smith wrote the Judgment on behalf of the Court of Appeal and allowed the Appeal and gave a verdict in favour of the Plaintiff. She found, on the basis of the facts as found, the Defendant was negligent. He knew Clay Street well and it was no surprise to him that there were young children playing there. He was, in effect, driving through a playground. The duty upon him was accordingly high.
The Judge accepted that he adjusted his speed when he saw the children and took up a line of travel close to the left kerb. That was sensible as the children were then on his right. However, when the Plaintiff crossed in front of him to the left pavement, his line of travel was going to take him very close indeed to the Plaintiff. He saw that the Plaintiff continued to play with the ball; he kicked it against the wall. He was not looking towards the Defendant. That created a situation fraught with danger. The movement of the Plaintiff was at that time, wholly unpredictable.
Furthermore, Her Honour stated that if it meant the Defendant should have stopped his car, then so be it. She did not think that such would be a counsel of perfection in these circumstances. He was only going slowly so there would be no difficulty in stopping. His was the only moving vehicle in the street at the time so there was no pressure upon him to keep traffic moving.
In these circumstances, the onus was on him, as an adult and as the driver of a car, either to sound his horn or stop or both so as to ensure that the Plaintiff kept still while he proceeded. This may sound exacting, but in Her Judgment, it is not unreasonable burden to place on a motorist who is driving very close to a young child.
In summary, this is a decision of the Court of Appeal in the United Kingdom. There were no details as regards the amount of damages awarded to the Plaintiff. Therefore, I am not able to also consider the approach taken by the Court with regard to the questions of future economic loss (see Section 126 of the Motor Accidents Compensation Act) (NSW) 1999 nor the provision for attended care services in the future (see Section 128 of the Motor Accidents Compensation Act) (NSW) 1999.
Dated: 14 September 2011
D R Ford
Lawyer
BA LLB - Sydney University
Accredited Specialist in Personal Injury Law
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