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Smith v Hammond, Court of Appeal, 25 June 2010

9 July 2010
The issues

Road traffic – cyclist – expert evidence – emergency braking – sounding of horn – standard of care to be expected from reasonably prudent motorist.

The facts

On the 24th September 2005 in the afternoon, Joshua Smith, then aged 13 was delivering newspapers to houses in Cheadle Road in Tean. The road was a quiet single carriageway in a lightly built up area, subject to a 30mph speed restriction. He was employed as a paperboy by the local branch of the Co-Op and was riding his bicycle. From time to time he had to cross the road to make deliveries. Most of the houses in the road were set back, within gardens bounded at the front and sides by fences or low walls. At number 77 there was a grass verge between the boundary of the property and the carriageway, which was intersected by tarman drives enabling access to motor vehicles. At 2.10pm Joshua was leaving the driveway of number 77 intending to make his way across the road to continue his round. He did not look but cycled straight out across the road into the path of a DAF flatbed lorry, driven by Mr Hammond. Mr Hammond braked hard and swerved sharply but failed to avoid a collision. Joshua was very severely injured. He brought proceedings against the Co-Op as his employer and against Mr Hammond. Mr Hammond counter claimed from Joshua and from the Co-Op in negligence in causing the accident which had adversely affected his psychiatric health. The matter came before the Judge on liability only.

The Judge found that the accident had been caused by Mr Hammond’s negligence but that Joshua had been careless to the extent of 60%. Mr Hammond’s counterclaim was dismissed on the basis that a person of Joshua’s age would not reasonably foresee physical injury to the driver of the lorry under these circumstances. Mr Hammond Appealed.

The decision

The road was dry and the visibility good. There was little traffic and few parked vehicles. The Judge had come to a view, having heard expert evidence, that Mr Hammond had been driving at about 30mph. The Judge found that Mr Hammond was liable because he had failed to sound his horn at the appropriate time. This was on the basis that he had seen Joshua coming up the drive of number 77 and had admitted in cross-examination that he could have “beeped” him then. He had gone on to say that he did not think Joshua would continue into the road without looking.

It had been argued for Mr Hammond that it was asking too much to expect a driver faced with an emergency of the kind confronting him, to sound his horn whilst engaged in emergency braking and swerving in an attempt to avoid a collision, whilst at the same time trying to maintain control of the vehicle.

Courts were entitled to expect all road users to exercise a degree of care commensurate with the dangers involved. The standard however remained that of the reasonably prudent motorist. The Court was not entitled to impose a higher standard amounting to counsel of perfection. A Court could not accept that in failing to sound his horn at the same time as he was engaged in extreme efforts to avoid a collision, that Mr Hammond was negligent. Should he have sounded his horn before? The chances at the point at which Mr Hammond first saw Joshua, of Joshua continuing into the road without stopping or looking his way seemed quite reasonably to be fairly slim. A prudent motorist should respond to a potentially dangerous situation in a manner that was proportionate to the stages of its development, ie: in proportion to the degree of danger that was or reasonably ought to have been apparent to him as the situation unfolded. When Mr Hammond first saw Joshua, he foresaw the possibility that he might cycle into the road without looking and took his foot off the accelerator to reduce his speed. He took the first step toward dealing with a potentially serious danger. At that stage however the risk seemed remote and the danger not great. There was no reason to sound his horn at that earlier stage.

Moreover, there was unchallenged evidence from Dr Searle, the expert called by Mr Hammond, that even if he had taken steps to sound his horn at that point the accident was already inevitable because the overall time required to sound the horn and for Joshua to react would have been 3 to 4 seconds, by which time Joshua would have been part way across the road. The Judge rejected that evidence, relying on his own experience of reacting to the sound of a horn when driving.

The Judge had been wrong. He was not bound to accept expert evidence if he had good grounds for not doing so. But, if that were to be the case, he should have given reasons for doing so other than simply saying that it did not accord with his own experience. It was tempting for Judges when dealing with matters of everyday experience to regard their own perceptions and experience as more reliable than the opinions of those who sought to describe such matters in scientific terms. That temptation should be resisted.

As to the counterclaim, the Judge dismissed it on the basis that the Claimant, who was 13, could not reasonably have foreseen that if he had cycled into a road and was hit by a lorry, that this would cause physical injury to the lorry driver. The Judge had been wrong. This was the wrong question. He should have asked himself whether a boy of the Claimant’s age should reasonably have foreseen injury to another road user of any kind, including a cyclist or motorcyclist. It would be obvious to a boy of 13 that there was a risk of causing personal injury to the rider by cycling across a road without warning. Joshua was substantially to blame for the accident and it was inherent in that finding that he was careless both of his own safety and that of Mr Hammond. Mr Hammond’s counterclaim would therefore succeed in full.

Appeal allowed.

Comments

This is another case re-emphasising that the duty on the motorist is not a duty of perfection – see Ahanonu v South London & Kent Buses; and Lambert v Clayton. If it seems a particularly harsh Judgment, that can perhaps partly be explained by the fact that the Co-Op, who took no part in the Appeal, had confirmed that if Mr Hammond’s counterclaim were to succeed, that it would accept liability as Joshua’s employer and would not seek to recover any part of the damages from Joshua himself.

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