Paramasivan v Wicks

Negligence requires a realistic assessment of reasonable care, not a counsel of perfection or a guarantee of safety. A driver need not reduce speed merely because a distant group of young people is visible where nothing suggests that anyone will enter the carriageway. However, a driver may breach the duty to keep a proper lookout where a pedestrian is emerging at speed from parked cars in the driver’s direct field of view. Causation may be established on the balance of probabilities where a lower-speed impact would have materially reduced the severity of injury. Contributory negligence must reflect the parties’ relative responsibility.

The claimant, aged 13, was injured when he ran across a road and into the appellant’s car. The appellant was travelling at about 25 miles per hour in his correct lane. The High Court, dealing with liability only, held that he should have reduced his speed to 15 miles per hour after seeing, or when he ought to have seen, a group of young people near shops. Liability was apportioned equally.

The appellant challenged the assumed running speed, the finding that 15 miles per hour was required, breach of duty, causation and the apportionment of responsibility. The central issues were whether the appellant’s speed was unreasonable, whether he should have seen the claimant in time to react, whether the failure caused the injury, and how responsibility should be divided.

1. Appeal allowed. The court substituted an apportionment of 75 per cent contributory negligence to the claimant and 25 per cent liability to the appellant.
2. The judge’s assumption that the claimant was running at 3.6 metres per second was a permissible finding of fact. The court would not interfere with it. However, the conclusion that the appellant should have reduced his speed to 15 miles per hour was an evaluative judgment, rather than a primary finding of fact.
3. On the particular facts, driving at 25 miles per hour was reasonable. The group was some distance from the appellant’s carriageway, separated by the opposing carriageway, a parking bay and part of the pavement. Nothing indicated that anyone was about to run into the road. The standard of care had to remain realistic and could not become a counsel of perfection or a guarantee of safety. The court relied on the observations of Laws LJ in Ahanonu v Southeast London Kent Bus Company [2008] EWCA Civ 274.
4. Nevertheless, the appellant was in breach of duty for failing to keep a proper lookout. The claimant was emerging from parked cars in the appellant’s direct field of view, running across the lane. The appellant had about 2.1 seconds to see him and 1.1 seconds in which to brake. Those were brief but significant periods.
5. Causation was proved on the balance of probabilities. The evidence showed that an impact at about 9 miles per hour would have been materially less severe than one at 25 miles per hour. The difference in injury was therefore more than marginal.
6. Hughes LJ added that, if expert evidence had been necessary, the parties’ joint decision not to call engineers or doctors at the liability stage would have required the causation issue to be deferred to the second stage of the split trial. He made no general observations about trial conduct and confirmed that the claimant retained the burden of proving causation.
7. The claimant’s conduct created the hazard and was highly careless. Given his age and the appellant’s brief failure to respond, equal apportionment was inappropriate. The proper division was 75 per cent contributory negligence and 25 per cent liability.

• Court of Appeal (Civil Division) — [2013] EWCA Civ 262: appeal allowed to the extent that the liability apportionment was varied to 75 per cent contributory negligence and 25 per cent liability.
• High Court of Justice, Queen’s Bench Division: His Honour Judge Brown QC found the appellant liable and apportioned responsibility equally.