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Ehrari v Curry & Anor, Court of Appeal, 21 February 2007

5 March 2007
The issues

Road traffic – pedestrian – child struck whilst crossing road; extent of duty on driver to take avoiding action.

The facts

On the 25th June 2001 the Claimant Somaya Ehrari, then aged 13, stepped out from behind a parked car and a second later was struck by the near side mirror of a builder’s truck driven by the Defendant, Martin Curry, an employee of the Second Defendant. As a consequence she suffered severe brain injury. The accident happened at 3.30pm after the Claimant had come out of school and whilst she was walking along Brentford high street, along the north of Brentford high street. The high street was busy with pedestrians and traffic, including school children. The Claimant wanted to cross the road to the other side to catch a bus. Next to the pavement was a bus lane which was available for parking in marked parking bays in the afternoon. The lane next to it was 3.6 meters wide. The lane on the other side was 5 meters wide. Parked in the bus lane was a Volvo estate, two armchairs on their backs on the roof rack. It was as the Defendant approached the Volvo that the Claimant walked into the road from behind the rear off side of the Volvo, probably walking in a diagonal direction from the north to the south pavement in order to reach the bus stop where the bus she wished to catch was stationary. The Judge found the Defendant negligent but the Claimant contributorily negligent to the extent of 70%. The basis of the Judge’s findings were that the Claimant was not seen before the impact. The Defendant’s speed was not criticised – in the region of 20mph. The Defendant had a witness travelling in the cab of his lorry with him. Although the Defendant did not see the Claimant, his passenger did see her and commented that “it happened so quick, all I heard was the thud. Martin (Curry) did not stand a chance”. The Judge found that the witness had seen the Claimant “in his peripheral vision a fraction before the impact”. The Judge found that the Defendant did not see the Claimant because his attention was momentarily elsewhere. That in itself was not negligent. However, the Defendant was aware of the presence of children on the road and he had previously had to stop to allow children to cross and therefore he knew, or should have known that it was an occasion when a careful watch was required. The Defendant appealed against the Judge’s finding.

The decision

A driver exercising reasonable care cannot be expected to focus his attention in a number of different directions when driving in a busy high street. But he can be expected to look ahead towards an obvious source of danger.

The Judge found that the driver was aware of the presence of children. A driver, in the exercise of reasonable care, and aware of the presence of children on a pavement is under an obligation to keep a careful watch at that point and, all the more so when he previously had had to stop to let children cross the road.

To expect the Defendant, driving in a busy high street, to pay particular attention to pedestrians and children on his near side was not to impose too high a standard.

Could the Defendant, had he noticed the Claimant, have avoided the accident? Braking would not have avoided the impact. The distance required to stop was 12 meters, whilst the Claimant was only 10 meters away. Sounding the horn, which the Judge appeared to have thought might have been action that the Defendant ought to have taken, would have required a reaction by the Claimant. On the basis of a thinking distance of 6 meters or, at 20mph, 0.6 of a second, the horn had to be sounded and the Claimant to have reacted in the space of less than half a second. The Judge was not entitled to conclude that the sounding of a horn would, on the balance of probabilities have avoided the impact.

However, there was a basis on which the Judge could and did conclude that the driver should have taken action which would have avoided the impact, namely by swerving to his off side. Having regard to the position of the Claimant and the truck, even a small swerve at the last moment would have avoided the impact. On that basis the Judge was entitled to conclude that the driver had had an opportunity to take effective avoiding action.

Appeal dismissed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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