Smith v Co-Operative Group Ltd & Anor

A motorist’s duty in a developing road emergency is measured by the reasonably prudent motorist, not a counsel of perfection. The response required must be proportionate to the danger reasonably apparent as events unfold. A driver who has reduced speed on seeing a cyclist approaching a road while looking away need not sound the horn when the risk remains remote. Nor is failure to sound it while braking and swerving in an extreme attempt to avoid collision necessarily negligent. Causation must be established by evidence. A judge should not reject scientific evidence of reaction times merely because it conflicts with personal experience. In psychiatric-injury cases, reasonable foreseeability may include injury to another road user, not only the particular driver who suffers psychiatric harm.

A 13-year-old paper boy cycled from a driveway across a road into the path of a lorry driven by Mark Hammond. He suffered severe physical injury, while Mr Hammond developed post-traumatic stress disorder. Joshua sued the Co-op, his employer, and Mr Hammond. Mr Hammond counterclaimed against Joshua and the Co-op.

The trial judge held that Mr Hammond was negligent for failing to sound his horn, found Joshua 60% responsible, and dismissed the counterclaim because Joshua could not reasonably have foreseen physical injury to the lorry driver. The decision is reported at [2009] EWHC 3077 (QB). Mr Hammond appealed on liability and on the counterclaim. The central issues were whether the failure to sound the horn was negligent and causative, and the scope of reasonable foreseeability in the psychiatric-injury claim.

1. Appeal allowed unanimously. Moore-Bick LJ gave the leading judgment, with Wilson LJ and Moses LJ agreeing. The judgment against Mr Hammond was set aside. Judgment was entered for him on the counterclaim, with damages to be assessed.
2. The applicable standard was that of the reasonably prudent lorry driver. The degree of care had to reflect the dangers involved, but the court could not impose a counsel of perfection. A prudent motorist should respond proportionately to the stages of a developing situation and to the degree of danger apparent, or reasonably apparent, as it unfolds. When Mr Hammond first saw Joshua approaching the road while looking away, the risk appeared remote. He responded by easing off the accelerator. The judge had not found that he should have sounded his horn at that stage.
3. Mr Hammond was not negligent in failing to sound the horn while engaged in extreme braking and swerving to avoid the collision. In any event, the finding on causation could not stand. Dr Searle’s evidence was that the time required to sound the horn and for Joshua to react was about three to four seconds, making the collision inevitable. The trial judge rejected that evidence solely by reference to his own experience. A judge should not substitute lay perception for scientific evidence without satisfactory reasons. If the expert evidence were rejected, there was no evidence capable of establishing that the omission caused the accident.
4. The alternative argument that Mr Hammond should have reduced his speed sufficiently to avoid the collision had not been put at trial and was unsupported by findings. It was therefore improper for the Court of Appeal to decide it.
5. On the counterclaim, the trial judge had confined the reasonable-foreseeability inquiry to physical injury to the lorry driver. The Court accepted that a child’s carelessness in crossing a road should be assessed by reference to foreseeable injury to another road user, including a cyclist or motorcyclist. Joshua’s substantial blame necessarily involved carelessness towards both his own safety and Mr Hammond. As Mr Hammond was not negligent, his counterclaim succeeded in full. The Co-op accepted liability as Joshua’s employer and agreed not to recover any damages from Joshua.

• Court of Appeal (Civil Division): In [2010] EWCA Civ 725, the appeal was allowed. The judgment against Mr Hammond was set aside, and judgment was entered for him on the counterclaim, with damages to be assessed.
• High Court of Justice, Queen’s Bench Division: In [2009] EWHC 3077 (QB), the judge held Mr Hammond negligent for failing to sound his horn, found Joshua 60% responsible, and dismissed Mr Hammond’s counterclaim.