Update: RTA

To establish negligence against a motorist it must be shown that, on the occasion in question, the motorist's driving fell below the standard of the reasonably competent motorist and that as a result damage or injury was sustained.

The standard of care expected of motorists is especially high where the behaviour of other, more vulnerable, road users (such as pedestrians and horse riders) is such as to put the motorist on notice that such road users may act suddenly and place themselves in danger. Just how high the standard is set is powerfully illustrated by a series of recent decisions.

Young children

In Boardman v Ministry of Defence (12 November 2010, unreported) a refuse vehicle and an army lorry were approaching each other on a narrow, unclassified road. A group of young boys were at the side of the road. As the refuse vehicle approached, one boy ran into the road in front of the vehicle and then ran back to the side. The driver of the military vehicle assumed that the boys were playing 'chicken'; he slowed to about 15 mph. As the vehicles passed each other the claimant, a six-year-old child, ran behind the refuse lorry and into the path of the army lorry. He was run over and sustained serious injuries.

HHJ Hawkesworth QC (sitting as judge of the High Court) found the driver of the army lorry to have been negligent. He should have slowed even more so as to keep an eye on the children as he passed them. This would have entailed slowing to such an extent so as to allow the refuse vehicle to pass before the army lorry reached the children: 'A driver is not required to foresee the folly of other road users, but he is bound to take into account that children, especially young children, may act without thinking and in a manner which may be unpredictable and dangerous to themselves.'

As the claimant was only six years old there was no question of a finding of contributory negligence and so the claimant recovered in full.

Powerful vehicles

The need to anticipate danger and to modify driving accordingly is illustrated further by Sedge v Prime (31 January 2011, unreported). Late on a Friday night in June there were revellers by the side of the high street in Sheerness, Kent. The defendant was driving a BMW X5 4x4 motor car at between 40 and 50mph on the approach to the high street where traffic calming measures had been introduced, including a reduction of the speed limit to 20mph and the placing of bollards along each side of the road. Before the BMW had reached the 20mph zone, the claimant, a man of 21 with a glass of lager in hand, stepped out without looking and was struck by the 4x4, sustaining catastrophic injuries.

After a careful analysis of the evidence HHJ Burrell QC (sitting as a judge of the High Court) found that, as there was a risk that a pedestrian could step out at any time, the maximum speed that a reasonably careful driver would drive at was 10mph, whereas at the time of the impact the BMW was travelling at greater than 30mph. As the road was bounded by bollards, in the event of a pedestrian stepping out there was nowhere for a vehicle to swerve to and so a driver would have to be driving at such a speed so as to be able to stop. At 10mph the defendant would have avoided the claimant altogether.

The claimant had clearly been guilty of contributory negligence, but in apportioning liability the judge took into account the fact that the BMW was a large, powerful vehicle as well as the defendant's negligent speed, his failure to sound his horn and his failure to make proper observations; a finding of only 25 per cent contributory negligence was made.

Deliberate risks

Where, however, a pedestrian takes a deliberate risk, then even if the accident was partly caused by a motorist's negligence the pedestrian cannot complain if a substantial finding of contributory negligence is made.

In Belka v Prosperini [2011] EWCA Civ 623, in the early hours of the morning a pedestrian was struck by a taxi on an urban dual carriageway in Newcastle-upon-Tyne. The claimant had been out with a friend and they had consumed about four pints of beer each. They were crossing at an unregulated crossing where there was a refuge but no precedence for pedestrians. The defendant was driving at a speed below the 30mph speed limit. He was about 50 metres from the crossing, near the exit from a roundabout, when he saw the claimant's friend on the refuge. It seems that the friend waited for the taxi to pass but the claimant took a risk and ran across the road such that he was relying upon the taxi driver to take some avoiding action otherwise an accident was likely. Having seen the friend (but not the claimant) the taxi driver should have removed his foot from the accelerator and eased off his speed. Such a step would have avoided the accident.

The trial judge found the taxi driver negligent for not easing his speed and for failing to make proper observations but he found that the claimant pedestrian was two thirds to blame. The Court of Appeal upheld the trial judge's apportionment of liability. Notwithstanding the fact that the taxi driver was in control of a potentially lethal vehicle, the claimant had taken a deliberate risk and this blameworthiness had to be set against the negligence of the defendant which was merely to fail to ease his speed and to fail to keep a proper look out.

Anticipating danger

The requirement for a motorist to anticipate danger is forcefully illustrated by Stoddart v Perucca [2011] EWCA Civ 290, where a collision occurred on a derestricted road near Sunderland between a campervan, being driven by the defendant, and the claimant, a 14-year-old girl who was riding a horse called Trigger.

The claimant had been riding with her friend, Hayley, and to return to the stable it was necessary for the horses to cross the road and ride along the road for about 120 yards. Hayley was significantly ahead of the claimant and she crossed the road without incident. The defendant observed Hayley and marginally slowed his speed, which was about 40mph and therefore comfortably within the speed limit of 60mph. A driver behind the defendant also saw Hayley on her horse and he knew from experience that riders often ride in pairs, and so, anticipating another horse, he slowed. The defendant did not possess this foresight and having passed Hayley he increased his speed whereupon the claimant and Trigger emerged at a fast walk or trot onto the road and a collision occurred.

The claimant, an experienced rider, had not stopped to look before crossing the road. The defendant was found to have been negligent for not having appreciated the possibility of there being a second horse and for increasing his speed. This appears to set the standard of care very high. To avoid being negligent the defendant only had to drive at the standard of the reasonably competent motorist, and, although the driver behind had the benefit of greater experience and thus was able to anticipate the emergence of a second horse, on the basis of this decision it seems that every driver must act with that degree of impressive foresight.

In apportioning liability, the judge found that the claimant's blameworthiness was significantly more than the defendant's '“ in that she rode Trigger out onto the road without looking '“ but that because the causative potency of the defendant's negligence was greater liability should be apportioned equally.

Surprisingly, permission was not granted to appeal the finding of liability against the defendant but permission was granted to appeal against the apportionment of liability. The Court of Appeal, however, is always reluctant to interfere with a trial judge's apportionment of liability unless it can be shown to have been plainly wrong. The trial judge had directed himself to the observations of Latham LJ in Lunt v Khelifa [2002] EWCA Civ 290 and he was correct to take into account not only the respective blameworthiness of the parties but also the causative effect of negligently driving a campervan.

It seems therefore the standard of driving to be expected of the ordinarily competent motorist is high and includes not only a duty to make proper observations but also a duty to anticipate the potential actions of vulnerable road users. This is justifiable on the basis that motorists are in charge of powerful and dangerous vehicles, which can reap terrible consequences on pedestrians and other vulnerable road users. Motorists and their insurers should take note.

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