Curry & Anor v Ehrari

A driver’s duty of reasonable care is context-sensitive. A driver who knows that children and pedestrians are present near parked vehicles on a busy road must keep a careful watch ahead and may be negligent if a pedestrian who becomes visible directly ahead is not seen at all.

In assessing causation, the court may uphold a finding that a collision would probably have been avoided if there was evidence that a practicable evasive manoeuvre, such as a limited swerve within the available lane, could have prevented serious contact. A speculative conclusion that a warning horn would have altered the pedestrian’s conduct in less than half a second cannot alone support that finding.

The claimant, a 13-year-old girl, emerged from behind a parked vehicle while crossing a busy high street after school and was struck by the nearside mirror of a truck driven by the first appellant in the course of his employment by the second appellant. She sustained severe brain injury.

Jack J found the driver negligent for failing to see her and held that he could have avoided an impact of serious consequence. The judge attributed 70% responsibility to the claimant and 30% to the appellants. The appellants appealed the findings of negligence and effective avoiding action, contending that the claimant was visible for only about one second.

1. Appeal dismissed unanimously. Moses LJ, with whom Rix and Buxton LJJ agreed, held that the judge was entitled to find the driver negligent and that his negligence had materially contributed to the claimant’s injuries.

2. The driver had not been negligent in failing to see the claimant before she emerged from behind the parked vehicle. Once she emerged, however, she was effectively in front of him for about one second and he did not see her at all. The judge was entitled to infer that his attention was momentarily elsewhere.

3. The required standard did not demand that the driver focus in every direction at once. It did require particular vigilance ahead in the circumstances. He knew that children were nearby and had recently had to stop in substantially the same place to let children cross. The judge was therefore entitled to hold that a careful watch was required and that the failure to keep it was negligent.

4. The Court rejected the judge’s implied conclusion that braking or sounding the horn would probably have avoided the collision. Braking could not stop the truck in the available distance. A horn would have required the claimant to react in less than half a second, which the judge was not entitled to find probable.

5. That error did not undermine the result. The truck was positioned centrally in a 3.6-metre lane, leaving room for a swerve to the offside without entering the opposing carriageway. The judge was entitled to find that reasonable care required such a manoeuvre and that even a small swerve would probably have avoided serious impact with the protruding mirror.

6. The judge was also entitled to use the Highway Code stopping and thinking distances. The appellants had not advanced their expert evidence as a challenge to those figures on the issue of avoidability.

• Court of Appeal (Civil Division): Dismissed the appellants’ appeal and upheld the finding that they bore 30% responsibility: [2007] EWCA Civ 120.
• High Court of Justice (Queen’s Bench Division): Jack J found the driver negligent and held that effective avoiding action was available. The claimant was held 70% responsible for the accident.