Home / Insight / Client Briefing: AB (by his mother and next friend CD) v Lisa Main High Court, 4 November 2015

Client Briefing: AB (by his mother and next friend CD) v Lisa Main High Court, 4 November 2015

04/02/2016

The Court of Appeal has granted leave to appeal in this case which is being handled by Andrew Underwood and Kate Scholefield, of Keoghs.

The defendant (through insurers) was represented by Chris Kennedy QC.

Background

The defendant had been driving her car down a single carriageway road when the claimant, then aged eight, had moved from the pavement out into the road and collided with the side of her car.

His head struck the lower nearside of the windscreen near the side pillar, causing a serious brain injury. The speed limit at the point of the accident was 40mph.

The defendant had been travelling at between 25mph and 30mph at the time of impact. She had seen two boys at the side of the road.

One of them had suddenly run into the road, while looking back towards the other boy, and collided with the side of her car.

Judgment at first instance – the findings

  1. Judgment for the claimant with a discount for contributory negligence of 20%.
  2. The relevant standard of care was that of the reasonably careful driver, armed with common sense and experience of the way pedestrians, particularly children, were likely to behave.

    If a real risk of a danger emerging was reasonably apparent to such a driver, then reasonable precautions should have been taken. If the danger was no more than a mere possibility, which would not have occurred to such a driver, then there was no obligation to take extraordinary precautions.

    The defendant was not to be judged by the standards of an ideal driver, nor with the benefit of "20/20 hindsight".

    A motorist driving close to children playing on the pavement owed a duty to ensure that those children were aware of his presence before proceeding past them.
  3. It was obvious from what the defendant saw that the claimant was a real, significant and increasing source of danger.

    She ought to have kept the boys under closer observation than in fact she did, and either to have taken her foot off the accelerator and covered her brakes, or to have sounded her horn.

    Although she was driving at a reasonable speed and genuinely believed that she was taking reasonable precautions, the defendant made a series of errors of judgement which cumulatively amounted to negligence.
  4. If the defendant had kept the claimant under proper observation and reacted appropriately by covering her brakes, the impact would have taken place at a speed of less than 20mph and the claimant would not have suffered the serious brain injury which he did.

    Had the collision occurred at a speed of just over 20mph, the impact between the claimant and the car would either have been a frontal impact rather than a side impact or, alternatively, a glancing impact further along the side of the car and again the serious head injury would have been avoided.

    If the defendant had sounded her horn as she approached the claimant he would have become aware of her presence and would not have attempted to cross the road.
  5. An ordinary child of the claimant's age could reasonably be expected to have sufficient knowledge and experience of crossing roads to know of the importance of checking for oncoming traffic before crossing.

    However, children of that age were liable to become distracted by things which would not distract an adult in a similar situation. His share in the responsibility for the damage (20%) must reflect the fact that had the claimant not been so young he would almost certainly not have done what he did.

The Appeal

The Court has given the defendant leave to appeal the finding on primary liability. The claimant has not sought to appeal the finding on contributory negligence.

The Hear By date is February 2017.

What this means for insurers

In the event this case is quoted in the context of motor claims’ liability, insurers should be aware that it is the subject of an ongoing appeal.

Author

Andrew Underwood

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