Gracie Lea Atkinson v Thomas Kennedy & Anor

The standard of care owed by a professional driver is assessed objectively, in the circumstances prevailing at the time and without hindsight. A driver of a large goods vehicle approaching a junction is not ordinarily required to stop merely because pedestrians are waiting on the footpath to cross, where the vehicle is clearly visible, indicating its turn, and the pedestrians are accompanied by an adult. The Highway Code requirement to give way to pedestrians must be applied in context. A turning speed of 11.2–11.8 mph was reasonable on the facts. Even a materially lower speed would not have avoided the accident where the child ran into the vehicle. A seven-year-old child was not contributorily negligent, despite the unusual manner of entry into the road.

The claimant, aged seven, was seriously injured when she ran into the nearside of a large goods vehicle driven by the first defendant while it was turning left into a residential side road. The second defendant, the driver’s employer, was sued on the basis of vicarious liability. The hearing concerned liability only.

The claimant alleged that the defendant drove negligently by failing to keep a proper lookout, failing to stop before turning, and travelling too quickly. In the alternative, the defendants argued that the claimant was contributorily negligent. The central issues were whether the defendant’s driving fell below the standard of a reasonably competent and careful professional driver and whether any breach caused the accident.

1. Primary liability. The court assessed the defendant’s driving objectively, by reference to the circumstances at the time and without hindsight. Expert evidence assisted the assessment, but the court was required to stand back and consider the accident in its factual context.
2. The claimant and the other pedestrians were visible to the defendant for several seconds. The defendant may have been inadvertent in failing to see them, but he was otherwise focusing on the road, carrying out mirror checks, and driving with care and attention.
3. There was no obligation to stop before making the turn. The large vehicle was visible, was indicating, and was being driven at a comparatively slow speed. It was not reasonably foreseeable that either child would run into its side while it was turning. The requirement in Highway Code rule 170 to give way to pedestrians waiting to cross did not mean that every vehicle must stop whenever a pedestrian is standing on the footpath. Its application depended on context, and the position would differ where a pedestrian had already begun to step from the pavement.
4. The turning speed of 11.2–11.8 mph was reasonable. In any event, the collision would probably still have occurred at 7 or 8 mph because the claimant ran into the road. Even if she had been walking, the available reaction time was insufficient. The only effective avoidance measure would have been stopping, and the defendant was not legally required to stop.
5. Contributory negligence. The court considered the authorities concerning young children but held that, although the claimant’s conduct was surprising, she lacked sufficient culpability to warrant a finding of contributory negligence. Had primary liability been established, the claimant would have recovered on the basis of full liability.
6. There was no fault on the defendant’s part. Judgment was therefore entered for the defendant.