Heavy burden on drivers where children are about
A truck driver appealed against the apportionment of 30 per cent of the responsibility for a road traffic accident in which the wing mirror of his truck struck and injured a child who stepped out into the road from behind a parked car. He said that the Judge had been wrong to find that he was negligent since a driver exercising reasonable care could not be expected to focus his attention in a number of different directions when driving in a busy high street, and a driver faced with an emergency in a crowded high street with traffic going in both directions could not be expected to react in time.
The defendant argued that the Judge should not have relied on the Highway Code to judge whether the defendant had sufficient time to take effective avoiding action.
However, the Court of Appeal upheld the apportionment of responsibility, finding that the original Judge had been entitled to conclude that, in the light of the driver’s awareness of the presence of children, he was negligent in failing to keep a careful watch and failing to see the child. There was also a basis on which the Judge could conclude that the driver could have taken effective action, namely swerving to his offside to avoid an impact of any serious consequence.
Ehrari -v- Curry & Another. Court of Appeal, 21 February 2007
Maypole misery for claimant
In a case that received a lot of publicity in the national press, the Court of Appeal struck another blow against claimants in order to protect the sanctity of social activities, in this case the village green.
The claimant appealed against the findings of a Judge that the owners of the village green were not liable for an accident at a May Day fete. A maypole was placed in a hole on the green which had been dug for that purpose. At the end of the last fete to be held on the green the hole was filled with soil and stones and subsequently with a bung.
Two years later, the hole had become exposed and, while walking across the green, the claimant stepped into it and broke her leg. The Judge held that there was a breach of duty as adequate steps had not been taken to ensure that the hole had been filled in properly.
However, the Court of Appeal found that the hole only became exposed shortly before the accident. There was no evidence as to how it became exposed; it was likely to have been the action of children playing on the green. The judge failed to consider the issue of causation and whether the infill was a causative factor.
The true cause was plainly the removal of the infill. If a hole had been left unsealed after the fete, it would be arguable that the defendant was liable but the hole was not left unfilled. The court went on to say there was a danger in setting too high a standard of care as could lead to inhibiting traditional activities on village greens.
Cole -v- Davis-Gilbert & Others. Court of Appeal, 1 March 2007