ROAD TRAFFIC 2007 – Drivers Beware!

Adam D Dawson – 9 GOUGH SQUARE

Its been a tough year for drivers, petrol prices seemingly rocketed out of control a few months ago; speed cameras appear to capture more errant drivers than at any point in history and in London the Congestion Charging Zone gets ever bigger (and no doubt soon will get more expensive).  Its no longer cool to drive your 4 x 4, in fact its getting less and less cool to drive at all!

There is a bitter irony when motorways display flashing 50 or 60mph limits – its not that the driver is annoyed at being slowed down, it’s the sheer dismay that they will not in fact travel faster than 20 mph!

In relation to road traffic accidents the government and related agencies appear to have spent an increasing amount on hard hitting advertising.  Their slogan is Think! Although as the recent case of EHRARI v CURRY & ANOR  [2007] EWCA Civ 120 shows, thinking time is not high up on the agenda of the judiciary.

The background to this matter is that, at the time of the accident Ehrari (the Claimant) was a child. She had wanted to cross a busy road in order to catch a bus. There had been a number of school children on the pavement and, from time to time, crossing the road through the traffic. In fact Curry (the Defendant) had previously stopped to let children cross.

An accident occurred when the claimant had stepped out from behind a parked car and had been struck by the nearside mirror of the defendant's truck. The claimant suffered severe brain injury. In determining the facts at first instance, the judge held that the defendant had had approximately one second to react, this being the time from when the claimant emerged from behind the parked car to the point of impact. The judge found that this was the period of time in which the defendant had to register the claimant’s presence and to take effective avoiding action.

The defendant had a passenger sitting to his left. The judge found that C's passenger had seen the defendant only a fraction before the impact. The judge at first instance held that the appropriate apportionment of responsibility for the accident was 70 per cent the claimants own fault and 30 per cent the defendants.

The defendant appealed against the decision on two grounds. First that the judge had been wrong to find that he was negligent at all, since a driver exercising reasonable care could not be expected to focus his attention in a number of different directions when driving in a busy high street; and secondly, that a driver, faced with an emergency, in a crowded high street with traffic going in both directions, could not be expected to react in time.  The defendant went further and stated that the judge should not have relied on the Highway Code but should have accepted that the whole of the period of one second would have been taken up as thinking time, leaving no actual time for effective avoiding action.

The findings on Appeal were that the fact that the defendants passenger saw the claimant only a fraction before impact, which did not assist the defendant. Rightly in my opinion they held that it was the defendant alone who had a responsibility to take reasonable care for the safety of pedestrians.  To extend this to a passenger, would surely be the akin to extending it to a mere passer-by.  Whilst in many circumstances a passenger may scream out a moment before impact, not such duty of care towards other road users could lay with the passenger.

The judge went on to find that the reality was that the defendant didn’t see the claimant at all, notwithstanding that she was in front of him for the space of about one second before the impact. Although a driver exercising reasonable care could not be expected to focus his attention in a number of different directions when driving in a busy high street, he could be expected to look ahead towards an obvious source of danger. The court went on to say that a driver, in the exercise of reasonable care, and aware of the presence of the children on a pavement, was under an obligation to keep a careful watch at that point, all the more so when he had previously had to stop to let children cross over the road. Accordingly, the judge had been entitled to conclude that, in the light of defendant's awareness of the presence of children, he was negligent in failing to keep a careful watch and consequently failing to see the claimant.

Further, in the circumstances, the sounding of the horn or braking would not have avoided the impact. However, there was a factual basis on which the judge could and had justifiably concluded that the defendant could have taken effective action, namely swerving to his offside, to avoid an impact of any serious consequence. The appeal court felt that such an action might have made all the difference in avoiding contact between the claimant's head and the nearside mirror. The width of that part of the carriageway down which the truck was travelling was 3.6 metres wide and the defendant had had room to swerve towards his offside without crossing over to the other carriageway. On that basis they held that the judge had been entitled to base his conclusions as to whether C could have taken effective avoiding action upon the distances for thinking and stopping given by the Highway Code and dismissed the appeal.

This would appear to assist in many of the commonly seen cases particularly involving youngsters outside schools and on busy high streets.  The ratio appears to take into account that the driver, having stopped previously for children crossing and given the general location, was on notice for potential hazards.  Even so, in a case where the evidence was that the defendant stepped out in front of the truck, it would appear a very narrow and strict application of the Highway Code with one second being a relatively short space of time in which the court expects a driver to think and brake/swerve.  It will no doubt be argued that this instance may be heavily fact based, given that even a minor correction to the left would probably have meant that the wing mirror missed the defendant’s head and any injuries would have been drastically reduced.