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O'Connor v Stuttard, Court of Appeal, 19 July 2011

28 July 2011
The issues

Road traffic – child playing in the street.

The facts

On the day of the accident the Claimant, who was 9 years old, was playing with a group of friends kicking a football against a wall. He was playing in Clay Street in Oldham. There was a pavement on both sides of the street. It was a fairly quiet street, some distance from a main road.

Mr Stuttard was coming back from where he worked after lunch and was intending to park his car in the car park at the far end of Clay Street. He drove into Clay Street slowly, probably at about 10mph and in a low gear. He saw a group of young children playing on the right hand side of the road. He further slowed and positioned his car very close to the left side of the kerb. As he was doing this the Claimant ran across the road in front of him from right to left chasing a ball. The Claimant continued to play with the ball, but in order to control it moved backwards to the very edge of the pavement, so much so that the heel of his left foot overhung the edge of the kerb. Mr Stuttard thought the Claimant would not leave the pavement and carried on moving forward very close to the kerb. He must have passed the Claimant at the moment when his foot was either protruding over the edge of the kerb or just in the road. The car struck the back of the Claimant’s foot causing him serious injury.

The Judge dismissed the Claimant’s claim.

The Claimant Appealed.

The decision

Authorities had been quoted to the Court of Appeal, which did not find them helpful. The standard of care owed by a driver to a pedestrian was to take such care as was reasonable in the circumstances. However, the circumstances varied so widely that comparisons with other cases were rarely helpful. The motorist should have foreseen the risk that the ball, being played with by the Claimant, might go out of control and that the way in which events might unfold was unpredictable. The motorist should therefore have realised that there was a risk that the Claimant might act in a foolish way and that this was not limited to the risk that he would decide to run back across the road.

The Judge had been wrong to say that the possibility that the Claimant might step back off the pavement was remote. The Judge’s decision that the Defendant had taken reasonable care had to be set aside.

There was no need to remit the claim for re-Hearing. On the basis of the facts that the Judge found, and which the parties were content to accept, the Defendant had been negligent. He knew Clay Street well and it was not a surprise to him that there were young children playing there. He was in effect driving through a playground. The duty on him was accordingly high. When the Claimant crossed to the left pavement, his line of travel took him very close to him indeed. The driver saw that the Claimant was continuing to play with the ball and was not looking towards the Defendant. This created a situation fraught with danger. Children could do silly things. The driver should have ensured that the Claimant was aware of his presence and was staying still before he drove on. To have stopped in such cases would not have been a counsel of perfection. The Defendant’s vehicle was the only moving vehicle in the street so there was no pressure on him to keep traffic moving. Alternatively he might have sounded his horn or both.

Appeal allowed.

focus on...

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