The claimant was a 13-year-old paperboy employed by the Co-op. He was cycling very slowly down the driveway from a house on his way to cross the road to the other side.
He was looking to his left and at no time looked to his right to see the traffic coming from the lane he would be crossing when he reached the road.
A lorry driver was driving at about 30mph within speed limits on the road and saw him looking to the left and started to take precautions in case he did not look. He took his foot off the accelerator.
He did not anticipate the boy would continue down the driveway without looking but he did. He came out into the road and despite the lorry driver performing an emergency brake, there was a bad collision and serious injury to the boy.
The truck driver brought a counter claim against the boy and his employer for the psychiatric injury he had suffered from witnessing the accident.
At first instance, the Judge apportioned blame 40/60 between the driver and the boy respectively.
His principal finding of negligence against the lorry driver was that he should have beeped his horn as soon as he saw the boy looking to the left so as to alert him to his presence. He dismissed expert evidence that the average road user takes 2-4 seconds to respond to the use of a horn and take evasive action. He overruled the expert evidence that a normal time to react to the horn would have made no difference at all to the outcome even if the driver had promptly beeped his horn. The Judge said that, in his experience, people react instantaneously to the beep of a horn and that would have been sufficient warning to immediately brake or steer away from the collision.
He dismissed the counter claim on the basis that no 13-year-old boy could reasonably foresee that his cycle would do damage to the driver of a large truck if he were to drive it negligently across his path.
The whole of this judgment went to the Court of Appeal.
Importantly, the Court of Appeal said Judges should be very slow indeed to substitute their own experience for expert evidence. A Judge was not bound to accept expert evidence if he had good reasons for doing so but to reject simply “on the grounds it did not accord with his own experience was a temptation that should be resisted, if only because the layman’s perception of matters of this kind may be well wide of the mark set by experts. The layman may well think that he reacts to something instantaneously but the scientist may be able to demonstrate that he does not”
The lorry driver’s reactions were those of a prudent motorist. They can be expected to respond to a potentially dangerous situation in a manner that is proportionate to the stages of its development, that is, in proportion to the degree of danger that was apparent as the situation unfolds.
That was how he responded. When he saw the boy in the drive he took his foot off the accelerator to reduce his speed. This was taking the first step towards dealing with a potentially serious danger.
However he did not reasonably think or foresee that the boy would then continue: the risk seemed remote and the danger did not then appear to be great. The chances of his continuing into the road without stopping or looking seemed fairly slim. It was reasonable for him not to sound his horn at that stage whether or not it would have made a difference. The driver had simply not been negligent and had taken reasonable steps for a reasonably prudent motorist at each stage.
Counterclaim for lorry driver
The court applied Page -v- Smith in which the House of Lords said that, where a claimant seeks to recover for psychiatric harm, it was enough that the defendant should reasonably have foreseen that the claimant might suffer physical injury as a result of his negligence.
The Judge at first instance had said that a 13-year-old boy would not foresee that cycling into a road and being struck by a lorry would cause physical injury to a lorry driver.
Counsel for the lorry driver said the wrong question had been asked. It should have been asked: should a cyclist foresee danger to any other road user when cycling effectively blind out into the street with moving traffic. That could include a cyclist or motorcyclist. Even in the case of a car, lorry or van, the realisation that a driver might have to brake violently, swerve or skid, collide with other vehicles or a stationary object and suffer injury as a result should be apparent.
The Court of Appeal accepted those submissions and said that the lorry driver should succeed in his counter claim in full.
As the employer, Co-op picked up the damages bill for the liability of their employee and did not seek a contribution from him.
Smith and Cooperative Group Ltd -v- Hammond  EWCA CIV 725