Hill v Gill

A driver is not negligent merely because he failed to see a pedestrian. The question is whether, in all the circumstances, he failed to take reasonable care. The court must avoid constructing, with hindsight, a guarantee of the pedestrian’s safety. Relevant circumstances include the pedestrian’s position, visibility, clothing, lighting, surrounding traffic and whether pedestrians could reasonably be expected there. Where a collision was unavoidable after a pedestrian emerged from behind another vehicle, the driver may not be liable. If liability were established, contributory negligence would require weighing each party’s blameworthiness and causative potency.

The claimant, aged 14, suffered life-changing injuries when he crossed the A12 outside a pedestrian underpass and was struck by the defendant’s car. The claim was tried on liability and causation as preliminary issues. The claimant alleged that the defendant failed to keep a proper lookout, failed to moderate his speed and should have seen him crossing. The defendant maintained that a van obscured his view and that the claimant emerged suddenly into his path.

The central issues were whether the defendant breached his duty of care and, if so, whether the claimant was contributorily negligent.

1. The claim was dismissed. The court accepted the defendant’s account that a van in the middle lane obscured his view and that the claimant emerged suddenly from in front of it. On the expert evidence, the defendant had no sufficient time to perceive the claimant and react.
2. The defendant was keeping a proper lookout ahead and around the vehicles. The collision was unavoidable once the claimant emerged into the inside lane. The defendant was therefore not negligent on the claimant’s primary case.
3. Nor was the defendant negligent for failing to see the claimant before the vehicles moved away from the traffic lights. The claimant was about 70 metres away, in a place where pedestrians were not expected, dressed inconspicuously, and present in twilight against a varied background. Applying the caution against using hindsight to turn reasonable care into a guarantee of safety, stated by Laws LJ in Ahanonu v South East London and Kent Bus Company Ltd [2008] EWCA Civ 274 at paragraph 23, the failure to see him was not a breach of duty.
4. Obiter, had liability been established, the claimant would have been found 75% contributorily negligent. His decision to cross the dual carriageway rather than use the underpass was highly blameworthy, although his age and the causative potency of the defendant’s driving would also have been considered.

Not stated in the judgment.