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James v Fairly, Court of Appeal, 27 February 2002

27 February 2002
The issues

RTA – child – causation – contributory negligence.

The facts

The Claimant was 8 at the time of her accident when she was seriously injured as she crossed a road. The road was an A road with two lanes going North and one going South. The accident happened in early evening. Street lighting was on. The point of impact was 4 metres from the kerb. Expert evidence was to the effect that it would have taken the child 1.97 seconds to walk at ordinary pace. The driver said he had had only a very brief glimpse of something in front of the car and he braked as an automatic reaction. The Claimant did not give evidence.

The Court of Appeal was struck by “a stark paucity of evidence”. As she crossed the first North bound lane, she was hit by the Defendant’s car which was travelling at 30 mph. The Judge found as a fact that the driver could not have been expected to have seen the Claimant until he was right on her and that even if he had seen her as she stepped off the pavement, he would still have been unable to avoid the collision. He further found that if he had found that the driver had been negligent that he would have gone on to have found that the Claimant was 60% to blame herself. The Claimant appealed.

The decision

1. There had been no evidence that the child had been doing anything unusual on the pavement which might have caused a careful driver to brake beforehand. The Court referred to Moore -v- Poyner with approval accepting Buckley LJ’s Judgment as to the appropriate test in these circumstances, namely “would it have been apparent to a reasonable man, armed with the common sense and experience of the way pedestrians, particularly children, are likely to behave in the circumstances, such as were known to the Defendant to exist%u2026 that there was a possibility of a danger emerging, to avoid which he should slow down or sound his horn or both. There was no error in the Judge’s reasoning on the evidence.

2. Although the Judge’s finding on contributory negligence was surprising, it could not affect the Judgment as a whole.

Appeal dismissed.

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