Norris v Tennant-Smith

A pedestrian injured in a road collision must prove negligence by the driver. A driver must keep a proper lookout, but is not necessarily expected to anticipate a person stepping suddenly into the road, particularly at night and amid other traffic. Where an unexpected emergency leaves only a very short time to react, hard braking and swerving may be the response reasonably required; the driver need not also sound the horn if there is no practical opportunity. An appellate court should respect a trial judge’s findings based on accepted eyewitness and expert evidence unless there is a proper basis for interference.

The plaintiff, a pedestrian, suffered serious injuries after being struck by the defendant’s car while crossing a London road at night. The Deputy High Court Judge accepted the defendant’s and eyewitnesses’ evidence that the plaintiff entered the road suddenly and at a normal walking pace, and dismissed the claim for damages.

The plaintiff appealed, challenging the assessment of the eyewitnesses and expert evidence. He argued that the defendant should have seen the danger earlier, sounded his horn, or stopped or avoided the collision. The central issues were whether the trial judge was entitled to make his factual findings and whether the defendant had acted negligently in the short period available to him.

The Court of Appeal unanimously dismissed the appeal.

1. Factual findings. The trial judge was entitled to accept the defendant, his passenger and the independent witness as honest and truthful, despite inconsistencies in estimates of distance. He was also entitled to conclude that the witnesses were mistaken in saying that the plaintiff emerged between parked cars, because that part of their evidence conflicted with the plaintiff’s position after the collision.
2. Speed, visibility and reaction time. The judge was entitled to find that the plaintiff was walking at approximately 1.5 metres per second. On that finding, the plaintiff reached the point of collision within about two to three seconds. A driver must keep a proper lookout, including for pedestrians who may step from the pavement, but need not necessarily see a person immediately on stepping into the road when that occurrence is not reasonably anticipated, particularly in darkness and while attending to other traffic and hazards.
3. Emergency response. The plaintiff entered the road suddenly, without warning, and into the path of the approaching vehicle. The defendant braked hard and swerved to the right. In those circumstances he did what an ordinary prudent motorist would do. He could not reasonably be expected also to sound his horn, since the emergency required immediate action and the horn would have been ineffective at that stage.
4. Appellate restraint. The Court of Appeal found no proper basis for interfering with the judge’s assessment of the evidence or his conclusion that the collision was not caused to any extent by the defendant’s negligence. The claim therefore remained dismissed.

Appeal dismissed with costs, with a section 18 costs order nisi and legal aid taxation of the appellant’s costs.

1. Court of Appeal (Civil Division): In [1995] EWCA Civ 2, the appeal was dismissed with costs.
2. High Court of Justice: A Deputy High Court Judge dismissed the plaintiff’s claim for damages.