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Paramasivan v Wicks, Court of Appeal, 23 January 2013

25 January 2013
The issues

Road traffic – contributory negligence – 13 year old boy

The facts

The defendant was driving in a residential area with a parade of shops to the right and houses and a park to the left. The speed limit was 30mph. In front of the parade of shops was a lay-by. The claimant was one of a group of children outside the shops. He was 13. He threw something at a friend and ran away, running between cars parked in the lay-by and onto and across the highway. The defendant’s car collided with him. The claimant suffered severe head injuries.

At first instance the judge found that the defendant had been driving too fast at 25mph. The proper speed in these circumstances would have been 15mph, having regard to the presence of a group of teenagers. The judge calculated that had the claimant been driving at 15mph, he would have been able to stop, whereas at the speed he was going, he was unable to stop. The judge found the defendant liable, but found contributory negligence to the extent of 50%. The defendant appealed.

The decision

The claimant was old enough to understand the dangers of the road and had created a hazard by doing something unexpected and careless

The judge’s calculations as to speed and his working assumptions could not be challenged and the figures used were well within a range of possible findings of fact available to the judge. The finding as to the speed the claimant should have been driving at was not a finding of fact, but a judgment of what the defendant should or should not reasonably have done. It was a counsel of perfection and unreasonable. The teenagers had shown no indication that one of them was going to suddenly dart across the road. Accordingly, the group had given no reason to require drivers to reduce their speed. The defendant could not be faulted for driving at the speed he was driving.

However, the judge’s conclusion that the defendant ought to have seen the claimant was upheld. Even at 25mph the defendant would have had time to apply his brakes and slow to a speed that would have reduced the impact. Reducing impact speed would have made a difference to the injury. The claimant was old enough to understand the dangers of the road and had created a hazard by doing something unexpected and careless. The defendant’s fault was failing to keep a proper lookout. The proper apportionment of blame was 75% to the claimant and 25% to the defendant.

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