James v Fairley

A driver is not ordinarily negligent merely because children are seen walking normally on a pavement. The circumstances must indicate a possible hazard requiring braking, sounding the horn, or other precaution. The same approach applies when assessing whether a driver should have seen a child stepping into the road. Poor light, traffic, competing lookout tasks and the very short reaction time are relevant. Even if a failure of observation is negligent, liability requires proof that it caused the accident. Where the collision would have occurred despite timely observation and braking, causation is not established.

An eight-year-old child was seriously injured after walking from the pavement into the path of a car travelling at about 30 miles per hour on a busy road at dusk. The trial judge dismissed her claim, finding no negligence in the defendant’s failure to see her earlier and, alternatively, that the collision was unavoidable. The claimant appealed, challenging the factual findings, the assessment of the driver’s lookout, causation and the proposed contributory-negligence finding.

1. Appeal dismissed. The trial judge’s conclusion that the defendant was not negligent was upheld, and the alternative causation finding independently supported dismissal.
2. The appellate court should not interfere with findings of fact unless the judge was plainly wrong. The findings concerning poor visibility, dark clothing, traffic and the children’s conduct were open to the trial judge.
3. A reasonable driver is not required to brake merely because children are walking normally on a pavement. There must be some indication of unusual, hazardous or potentially dangerous behaviour, such as playing, larking about, waiting to cross, or otherwise indicating that a child may move into the vehicle’s path. The court adopted the approach stated in Moore v Poyner [1975] RTR 127.
4. Whether the defendant should have seen the child stepping into the road had to be judged in all the circumstances. The poor light, crowded road, competing lookout tasks and less-than-two-second interval meant that treating the failure to see and react immediately as negligence could be a counsel of perfection. The reasoning was consistent with Morales (An Infant) v Eccleston [1991] RTR 151.
5. Even assuming negligent failure to observe the child as she left the pavement, the evidence supported the finding that the collision was inevitable. At the relevant speed and distance, a reasonable reaction time and braking distance left insufficient time to avoid impact. Negligence therefore did not cause the injuries.
6. The surprising proposed apportionment of 60 per cent contributory negligence did not taint the judge’s separate findings on negligence and causation. The order was appeal dismissed with costs. Costs issues concerning public funding were adjourned to a costs judge, and permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): dismissed the appeal from the order of His Honour Judge Bowers, sitting as a deputy High Court judge, who had dismissed the damages claim.