Birch v Paulson

A driver’s duty is to exercise reasonable care in the circumstances known at the time. It does not require a counsel-of-perfection response based on hindsight, nor an absolute guarantee of pedestrian safety. Where an adult pedestrian is standing at the kerb, appears alert to an approaching vehicle, and gives no indication of impaired judgment or irrational conduct, a driver may reasonably treat a sudden movement into the vehicle’s path at the last moment as an extremely remote risk. In those circumstances, reasonable care may not require the driver to reduce speed or steer farther from the kerb merely as a precaution.

The claimant, a protected party, sustained severe and permanent brain injury when he was struck by the defendant’s car while crossing a 50 mph road. The trial was confined to liability and causation.

His Honour Judge Stephen Davies, sitting at the Manchester District Registry, dismissed the negligence claim. He found that the claimant stepped into the road at the last moment, that the defendant had no reason to regard him as likely to behave irrationally, and that a reasonably careful driver need not have slowed or moved towards the centre of the road.

The claimant appealed, contending that the defendant should have anticipated danger and taken those precautionary measures. The central issue was whether the judge’s conclusion that there had been no breach of duty was open to him on his findings of fact.

Appeal dismissed unanimously. Lord Justice Davis held, with whom Lord Justice Mummery and Lord Justice Elias agreed, that the trial judge’s conclusion on breach of duty was properly open to him and disclosed no error.

1. The relevant standard was that of the reasonably careful driver, assessed by reference to the information available at the time. The law does not require a driver to take every measure that might, with hindsight, have prevented an accident. Nor does it impose an absolute guarantee of safety for pedestrians.

2. The trial judge was entitled to find that the defendant had not been in the position of the eyewitness, who had watched the claimant for some time. The defendant had seen an adult standing at the kerb and looking towards her car. She had no reason to know that he had been drinking, or to think that his powers of observation or judgment were impaired.

3. On those findings, the risk that the claimant would move suddenly into the road when it was plainly dangerous was extremely remote. The existing distance between the vehicle and kerb also gave a margin against an accidental stumble. It was therefore not negligent for the defendant to continue at about 40 mph without easing off the accelerator, braking, or steering towards the centre of the road.

4. The appellate court would not interfere with that evaluative conclusion. As the absence of breach of duty disposed of liability, it was unnecessary to determine causation; Lord Justice Davis expressed no final view on it.

• Court of Appeal (Civil Division) — by [2012] EWCA Civ 487, unanimously dismissed the claimant’s appeal and upheld the finding that the defendant was not negligent.
• Manchester District Registry, Queen’s Bench Division — on 23 June 2011, His Honour Judge Stephen Davies dismissed the claimant’s negligence claim with costs.