Barry v Wynn

A driver overtaking a stationary bus is not generally required to sound the horn merely because children have alighted from it. The relevant question is whether, on the facts known or reasonably apparent to the driver, it would have been apparent to a reasonable person, using commonsense and experience, that a danger might emerge which required that precaution. The assessment must address the kind of conduct reasonably to be anticipated, rather than the precise accident viewed with hindsight. A fleeting opportunity to see children beside the bus does not, without more, make it reasonably apparent that they will run across the front of the bus into the overtaking vehicle.

The claimant, an eleven-and-a-half-year-old boy, was seriously injured when he ran across a dual carriageway in front of a lorry overtaking the bus from which he had alighted. The trial recorder found the lorry driver liable, subject to two-thirds contributory negligence, holding that he should have seen the boys beside the bus and sounded his horn.

The driver appealed to the Court of Appeal. The issues were whether the evidence supported the finding that he had an opportunity to see the boys, and whether their subsequent conduct constituted a reasonably apparent possibility of danger requiring him to sound his horn.

1. Appeal allowed. The recorder’s finding of negligence was set aside and judgment was entered for the defendant driver.

2. The evidence did not support the finding that the driver could realistically have seen the boys beside the bus. At best, there might have been a fleeting opportunity to see them immediately after they alighted, before the bus obscured the view. The boys then remained on the pavement for approximately three seconds, during which an overtaking driver who had seen them might reasonably have become reassured that they would not cross.

3. The governing approach was that a driver is not bound to anticipate folly in every form, but must take account of the forms of careless conduct which experience shows may occur. A precaution is required where the possibility of danger is reasonably apparent; a mere possibility which would not occur to a reasonable person does not ordinarily create a duty to take extraordinary precautions.

4. Applying the approach in Moore v Poyner [1975] RTR 127, the risk that these boys would run across the front of the bus at the precise moment of overtaking was not a reasonably apparent possibility requiring the horn to be sounded. The cases were indistinguishable in principle. The recorder had imposed too high a burden on the driver.

5. The driver’s general knowledge that children used the bus stop, and that passengers normally waited until the bus had departed before crossing, did not establish knowledge that children commonly ran across the front of the bus. The accident was tragic, but the driver had not driven negligently.

The other members of the court agreed with Lord Justice Simon Brown.

• Court of Appeal (Civil Division): allowed the defendant’s appeal from the Central London County Court, set aside the finding on liability and entered judgment for the defendant.
• Central London County Court: Mr Recorder Patrick Talbot QC gave judgment for the claimant on liability, subject to two-thirds contributory negligence.