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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Birch v Paulson  EWCA Civ 487 (15 March 2012)
Cite as:  EWCA Civ 487
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ON APPEAL FROM MANCHESTER DISTRICT REGISTRY
(HIS HONOUR JUDGE STEPHEN DAVIES)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ELIAS
LORD JUSTICE DAVIS
(A PROTECTED PARTY BY HIS LITIGATION FRIEND JOHN BIRCH)
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Mr Winston Hunter QC (instructed by Horwich Farrelly Solicitors) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Davis:
"Crucially, they are agreed that if the defendant was still travelling at 40mph in the centre of her lane at the point when the claimant stepped into the road then, having regard to the range of likely reaction times and the time it would take to undertake emergency braking, the collision could not have been avoided nor could the impact speed have been reduced to the extent that the claimant would not have sustained a severe head injury."
"The question in this case, therefore, is whether or not a reasonably careful driver in the position of the defendant, observing what I have held would have been there to be observed by such a driver in these circumstances, would have considered there to be a sufficient risk that the claimant might suddenly step into the road in front of her as to make it necessary for her -- as a precautionary measure -- to reduce his speed to below 40mph and/or to steer over to the centre, so as to give herself more time and space to react should the claimant act in such way."
"The reasonably careful driver could rightly have assumed that if the claimant had not tried to cross the road whilst the driver was still some way away, they would not try to do so when the driver was very close. In my judgment, given the margins to which I have referred, and given that the oncoming lane was clear, if the claimant chose to try to cross in front of her car at anything other than at the very last moment, then the reasonably careful driver would have sufficient warning to brake and/or steer so as to avoid a collision. The risk of the claimant choosing to cross at the very last moment could only have been considered by the reasonable driver as being extremely remote."
"59. In the end, it is a matter of judgment. I consider that the majority of cautious drivers would, perfectly reasonably, have taken the view that there was nothing so unusual in the claimant's conduct as to make them think that there was a real risk that he would suddenly step into the road when it was obviously dangerous to do so, especially in circumstances where: (i) they would reasonably have assumed that he was alert to their presence; (ii) they would have no reason to think that his powers of observation or judgment were adversely affected by drinking or some other cause. Although they might have been aware of some risk that he might lose his balance on the kerbside and stumble forward into the road, since there was already a cushion of some 2m between the kerbside and their car's nearside, there would have been no obvious need to increase that cushion. This is a very different case to that where the kerb is right up against the road, so that there is very little margin for error.
60. I accept that some cautious drivers might well have eased their foot off the accelerator as they came closer to the claimant, but I do not consider that it would have been negligent not to do so. If I am wrong about that I do not consider, for reasons I shall explain that this would have made any difference to the outcome.
62. I am quite satisfied that a reasonably careful driver would not have considered it necessary either to brake, or to steer towards the centre of the road, still less to do both of those things. I consider that for me to hold that a reasonably careful driver would consciously have decided to slow down and to steer to the offside as a safety precaution would be a decision based on hindsight given what happened, rather than on the information available to a reasonably careful person in such a position at the time. Accordingly, whilst I have every sympathy for the claimant given the appallingly serious consequences of this collision, I am unable to find that the defendant was negligent as alleged."
Lord Justice Mummery:
Lord Justice Elias:
Order: Appeal dismissed