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Russell v Smith, High Court, 30 July 2003

1 October 2003
The issues

Road traffic – children – cyclist – blame.

The facts

At the time of the accident, the Claimant who was 10∫ years of age cycled across the junction of Graham Road and Churchbury Road, Enfield. Graham Road was the minor road. As he emerged from Graham Road, he collided with a car driven by the First Defendant. The Claimant suffered serious and incapacitating head injuries. He remembered nothing and gave no evidence. A Contribution Notice was served on the Second Defendant who was the owner of a car parked at the junction obstructing the First Defendant’s view into Graham Road. Each party instructed Accident Reconstruction Experts who agreed that the probable speed of the First Defendant was 30 mph. The speed limit was 30 mph. As a fact, the Judge found that the First Defendant’s speed was not less than 27Ω mph at the point of impact. Expert evidence was also agreed on the speed of the Claimant, namely that it was in the region of just under 10 mph. The Judge therefore found that he did not stop or pause at the give way line, but came straight out in to the junction. The Second Defendant’s car was parked within 10 metres of the junction, contrary to paragraph 217 of the Highway Code. It was parked therefore in breach of the Second Defendant’s duty of care to other road users and caused a foreseeable hazard by obstructing views. It had not however been illegally parked. If the Second Defendant had not been so parked, the First Defendant’s braking time would have been extended to the extent that her speed at impact would have been reduced to less than 20 mph. However, the Judge was not satisfied that on the evidence that he could conclude that this diminution of speed would have avoided the Claimant’s particular head injury or that on the facts it would have altered the First Defendant’s reaction time significantly.

The decision

1.The position of the Second Defendant’s car was not causative of the accident. The claim against the Second Defendant would be dismissed.

2.Although the speed that the First Defendant was travelling at was within the speed limit, it was not safe in the circumstances. 20 mph was agreed as a speed at which with normal reaction time, a driver should have been able to stop if a similar emergency to that created by the Claimant occurred. The First Defendant’s excess over such speed was therefore negligent and causative of the accident.

3.Primary responsibility for the accident lay with the Claimant however to the extent of being three quarters responsible for the accident. However, the Claimant was a vulnerable road user. Children should be allowed to encounter risk and parents should not be discouraged from allowing them to do so. Cars were potentially lethal instruments. There was therefore a high duty on other road users to make allowance for the inexperience and lack of caution of children. It was therefore just and equitable having regard to the balance of blame, to reduce the Claimant’s damages by 50% only.

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