Howe v Houlton & Ors

A driver approaching parked vehicles must keep a proper lookout and take reasonable avoiding action where an open car door or person is visible, or should reasonably be perceived as a hazard. Moving closer to parked vehicles to adopt a more central road position, when there is no need to avoid oncoming traffic, may amount to negligence. Illegal parking does not of itself establish contributory negligence where it neither created the relevant risk nor caused the accident. A claimant is not contributorily negligent for failing to anticipate an unusually dangerous manoeuvre by an approaching driver where the danger would not reasonably have been apparent.

The claimant suffered catastrophic injuries when a heavy goods vehicle struck the open driver’s door of his parked Peugeot and then struck him. The defendants alleged that the claimant had emerged into the lorry’s path, and relied on his parking within the controlled area of a pelican crossing, the position of his vehicle, his failure to observe the lorry and alleged breaches of statutory duty.

The trial was confined to liability following an order for a split trial. The central issues were the claimant’s position immediately before impact, the lorry driver’s opportunity to avoid the collision, and whether the claimant bore any responsibility for the accident.

1. Liability. The defendant driver was wholly liable for the accident and the claimant’s resultant injuries, loss and damage.
2. The claimant had exited his car, leaned back into it to retrieve his mobile phone, and then withdrawn into a standing position with his hand on the door. The lorry struck the open door and the claimant. The claimant’s account was supported by Mrs Usher’s evidence and was preferred to the defendant’s unreliable account.
3. The claimant’s manoeuvre took approximately 5.74 seconds. When it began, the lorry was approximately 36 metres from the impact point. The defendant had a clear view and sufficient time either to maintain his position near the centre line, move further right if necessary, or stop.
4. The defendant was not forced left by oncoming traffic. He moved within 80–85 centimetres of the Peugeot in order to adopt a more central position. His failure to see and avoid the open door and claimant, together with his delayed response after impact, demonstrated a failure to exercise proper care.
5. The claimant was not contributorily negligent. Parking on the zig-zag lines was not causative and did not, in these circumstances, fail to take reasonable care for his own safety. The evidence did not establish a breach of regulation 105 of the Road Vehicles (Construction and Use) Regulations 1986. The claimant had looked before opening the door, and it was reasonable not to anticipate that the lorry would change course and pass so close to the vehicle. Retrieving the phone from the passenger side would have been safer, but was merely a counsel of perfection.

Not stated in the judgment.