Ramirez v Maheswari

Negligence in a pedestrian–vehicle accident is not automatic merely because the driver failed to see the pedestrian. Liability remains fault-based and depends on whether the driver fell below the reasonable-person standard in the circumstances. A driver bears a high burden of care because a car is a dangerous weapon, but that principle does not impose liability where a pedestrian suddenly emerges into the vehicle’s path. Where the evidence establishes proper lookout, reasonable speed and reasonable care, the pedestrian’s sudden movement may be the sole cause. The Court of Appeal cannot replace the common-law fault requirement with a different regime; fundamental change is for Parliament. Permission to appeal was refused because the proposed appeal had no real prospect of success.

The claimant pedestrian sought permission to appeal from an order of Mr Nigel Wilkinson QC, sitting as a deputy judge of the Queen’s Bench Division, which dismissed her negligence claim arising from a road accident. The judge had found that she suddenly crossed into the defendant driver’s path without looking, and that the driver was not speeding, was keeping a proper lookout and had exercised reasonable care.

The claimant did not challenge the primary factual findings. She argued that the driver’s failure to see her gave rise to an inference of negligence, that the authorities on causative potency required liability to be apportioned to the driver, that an insufficient standard of care had been applied, and that the issue was of public importance. The central question was whether those arguments disclosed a real prospect of a successful appeal.

1. Permission to appeal. The application was dismissed because the proposed appeal had no real prospect of success. The claimant did not challenge the primary factual findings on which the High Court’s decision rested.
2. No automatic inference of negligence. A driver is not automatically liable merely because he did not see a pedestrian. The question is whether, on the evidence, the driver failed to keep a proper lookout or otherwise fell below the standard of care of a reasonable person. A driver may properly concentrate on passing a bus safely and cannot be expected to look in both directions at once. The evidence justified the finding that the defendant had exercised due care.
3. Causative potency. The authorities emphasise the high burden imposed on drivers because a car is a dangerous weapon, but they also recognise that a driver is not liable where a pedestrian suddenly moves into the path of an oncoming vehicle. Lunt v Khelifa [2002] EWCA Civ 801 and Eagle v Chambers [2003] EWCA Civ 1107 did not require a different result. On the findings, the claimant’s sudden emergence was the sole cause of the accident, and none of the pleaded allegations of driver negligence succeeded.
4. Fault-based liability. Negligence liability remains fault-based. The Court of Appeal could not replace the established common-law rule with a different regime. Any fundamental change was a matter for Parliament, not the court.
5. Public importance. The case turned on its special and unchallenged facts. It did not raise a suitable general issue concerning causative potency warranting permission to appeal.

• Court of Appeal (Civil Division): On 24 June 2015, Lord Justice Vos dismissed the application for permission to appeal, holding that there was no real prospect of the appeal succeeding: [2015] EWCA Civ 879.
• High Court, Queen’s Bench Division: Mr Nigel Wilkinson QC, sitting as a deputy judge, dismissed the claimant’s negligence claim on 1 May 2014.