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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 >> Smith v Co-Operative Group Ltd & Anor  EWCA Civ 725 (25 June 2010)
Cite as:  RTR 30,  EWCA Civ 725
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
His Honour Judge Shaun Spencer Q.C.
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE WILSON
LORD JUSTICE MOSES
| JOSHUA SMITH
(through his father and litigation friend PETER SMITH)
|- and -
|CO-OPERATIVE GROUP LIMITED
Mr. Christopher Wilson-Smith Q.C. and Mr. Richard Furniss (instructed by Bolt Burdon Kemp) for the first respondent
The second respondent did not appear and was not represented.
Hearing dates : 24th May 2010
Crown Copyright ©
Lord Justice Moore-Bick :
"When I first saw him he was looking at [sic] his left. I watched and observed. There was an element of doubt. Would he come out of the drive? That doubt caused me to ease off the accelerator in case I had to deal with an emergency. I could have beeped him, but I didn't think he was going to come out. I eased off so as to slow down in case he presented me and him with a dangerous situation. I expected he would wait and let me pass. I could have sounded the horn. At all times he was looking away. I assumed he would stop, but to do that he would have to see me. I didn't brake then because I didn't think he would come out. I started braking when he was halfway down the drive on the apron between the post and the road. That is when I jumped on the brakes."
"I accept that, given that he was looking in the opposite direction, that required great caution from me. I thought the cyclist was not paying attention."
"36. I take the view that, compendiously, those replies amount to a plea of guilty to negligence. It establishes, first, that the second defendant saw the claimant approaching the carriageway on his, the second defendant's, nearside; second, the second defendant saw that the claimant had not seen him – that, I interpose, was clearly for want of a proper lookout on the claimant's part; third, he identified the claimant as a potential source of danger; fourth, he recognised that that required great caution on his part; fifth, on his account at trial he eased off the accelerator. Then, to conclude, he assumed that the claimant would stop. I interpose that this is notwithstanding he knew that the claimant had not seen him and, therefore, his assumption can only have been based on the proposition that the claimant would stop at the major road because people are supposed to stop at the major road.
37. So far as my findings are concerned, I find that the claimant, being in the position that he was to the knowledge of the second defendant, the second defendant in the first place could have sounded his horn, in the second place he should have sounded his horn and, in the third place, if he had done, that would have alerted the claimant to his approach . . . This is a situation of a cyclist approaching ahead on the nearside who, to his knowledge, had not seen him. The suggestion has been made (largely in the evidence it came from Dr. Searle) that sounding the horn would have done no good. I do not accept that. Dr. Searle suggests that research shows a reaction time of two seconds for the person hearing the horn. This is apparently based on some research using volunteers and machines. My own experience so far as driving is concerned is that one reacts pretty instantaneously to the shock of a horn going off, and a slow moving cycle would be able to stop quickly or make a sharp turn to the left quickly in order to avoid where the sound was coming from. If the second defendant had sounded his horn, as he could have done, at a time when the claimant was halfway across the pavement, there would have been, albeit only seconds, sufficient time for the claimant to stop or move to his left away from the approaching vehicle and away perhaps from the squeal of brakes. I am satisfied that the claimant could have done that and that he would have done that."
Use of the horn
"56 . . . . I factor into the reasonable foresight ingredient the fact that the claimant was just 13. I am sorry to express my conclusions shortly, but I can see no other way of doing it. I just cannot see that someone of that age would foresee that if he cycles into the road and is hit by a lorry that he could foresee physical injury to the lorry driver."
Lord Justice Wilson:
Lord Justice Moses: