Chadli v Brooks & Anor

Negligence does not require a driver to take precautions against every conceivable mishap. The obligation to warn, stop, or alter position arises only where the driver knew or ought to have known that the circumstances presented a foreseeable risk of injury requiring a reaction. The court considers what is likely to happen if the risk materialises, the seriousness of the possible harm, and the measures needed to guard against it. A remote possibility of a fall, even with grave consequences, may not require action in a familiar situation such as people running for a bus near the kerb. On the facts, the driver was not required to anticipate this accident. The appeal was dismissed.

The claimant, aged 11 and a half, was seriously injured when he fell near the kerb as he ran towards a bus which was approaching a bus stop. His arm and leg were caught by the bus’s front nearside wheel.

The High Court, Queen’s Bench Division, dismissed the personal injury claim on 18 June 2004 after determining liability first. The claimant appealed, contending that the driver should have recognised the risk and sounded the horn, flashed the headlights, stopped short of the bus stop, or kept further from the kerb. The central issue was whether the driver ought reasonably to have recognised a foreseeable risk requiring such precautions.

The Court of Appeal unanimously dismissed the appeal.

1. The essential issue was whether the driver, having seen the claimant running towards the bus, knew or ought to have known that the situation called for a reaction. The driver could have taken precautions if the circumstances disclosed such a risk, for example where a very young child appeared to be in immediate danger.
2. In assessing foreseeability and the need for precautions, the court must consider what is likely to happen if the risk materialises and the measures necessary to guard against it. The driver could reasonably conclude that the claimant was running for the bus, was aware of its presence, and was not a very young child.
3. The possibility of a mishap and grave injury was remote. The fact that serious injury would probably result if a particular sequence of events occurred did not make the risk one which the driver was required to recognise and guard against. People commonly run to catch buses near the kerb, and only relatively rarely does that conduct create a foreseeable risk requiring precautions.
4. The challenge to the judge’s assessment of the width between the bollards and the carriageway did not affect the result. Whether the gap was approximately 18 inches or 25 inches, it was wide enough for the claimant to run in. The judge’s conclusion was open on the available photographic and documentary evidence, and there was no basis for appellate interference.
5. The judge had been referred to Foskett v Mistry [1984] RTR 1 and Armstrong v Cottrell [1992] PILR 109. Kennedy LJ endorsed the view that citation of authority in this type of case was unnecessary and unhelpful, and the appeal was resolved by applying ordinary principles of foreseeability. Once the claimant fell, the driver could not have avoided the accident. Causation and contributory negligence therefore did not require determination.

Order: appeal dismissed. No order as to costs.

• Court of Appeal (Civil Division) — appeal dismissed; no order as to costs.
• High Court, Queen’s Bench Division — HHJ Altman dismissed the claim for damages for personal injuries on 18 June 2004 after trying liability as a preliminary issue.