O' Connor v Stuttard

A driver owes a pedestrian the care that is reasonable in the circumstances. Where a driver is travelling very close to a young child who is playing with a ball and is not watching the vehicle, the child’s movements may be unpredictable and the duty of care is high. The driver must take reasonable steps to ensure that the child is aware of the vehicle and remains still before proceeding. Depending on the circumstances, this may require stopping, sounding the horn, or doing both. Requiring such precautions is not a counsel of perfection where the driver can stop safely and there is no traffic pressure. An appellate court may substitute its own conclusion on negligence where the lower court’s reasoning contains an error, while respecting its primary factual findings.

A nine-year-old child was injured when the defendant drove slowly along a street where he knew local children played. The child had crossed the road chasing a football and continued playing against a wall on the pavement. The defendant drove very close to the kerb and struck the child’s foot as the child moved backwards while controlling the ball.

The county court held that the defendant was not negligent and dismissed the claim. The claimant appealed, contending that the judge had failed to appreciate the danger created by the developing situation and had reasoned inconsistently about the risks created by the ball and the child’s movements. The central issue was whether the defendant had taken reasonable care in the circumstances.

1. The appeal was allowed. The Court of Appeal set aside the finding that the defendant had taken reasonable care and entered judgment for the claimant, with damages to be assessed if not agreed.
2. The relevant question was one of judgment, not a challenge to primary factual findings. The appellate court would respect the lower court’s conclusion, but could intervene where the judge had fallen into error. The general standard was to take such care as was reasonable in the circumstances. Comparisons with other cases were rarely helpful because the circumstances of road accidents varied widely.
3. The lower court’s reasoning was inconsistent. If it was folly for an adult to continue kicking a ball on the pavement while a car approached, because the ball might become uncontrolled and enter the road, the same risk should have been foreseeable to a reasonable adult motorist.
4. The defendant knew the street well and knew that children played there. After the child crossed to the pavement, the defendant saw him continue playing while looking at the ball rather than at the vehicle. The child’s movements were therefore wholly unpredictable. The defendant was effectively driving through a playground, and the duty of care was correspondingly high.
5. Before proceeding so close to the child, the defendant had to ensure that the child was aware of his presence and kept still. That could have required sounding the horn, stopping, or both. The vehicle was travelling slowly, the defendant could readily stop, and no other traffic required him to continue. Those precautions imposed no unreasonable burden, even though the duty was exacting.
6. Remittal was unnecessary. The parties accepted the relevant findings of fact, and the Court of Appeal was able to reach its own conclusion on the facts found.

1. Court of Appeal (Civil Division): [2011] EWCA Civ 829. Appeal allowed; judgment entered for the claimant, with damages to be assessed if not agreed.
2. County court: HHJ Armitage QC dismissed the claimant’s action for damages on 6 August 2010.