21 July, 2011
The Court of Appeal has provided guidance to motorists who find themselves in an area where young children are in effect using the road as a playground.
Dame Janet Smith delivered the leading judgment in the case of O'Connor V Stuttard (19 July 2011).
Briefly the facts involved, S who had driven into a quiet street where a group of children, including O'C, were playing on the right hand side of the road. O'C who was aged 9 years ran across the road in front of him chasing a ball, reached the left hand side and continued playing ball. He moved backwards towards the edge of the pavement and his foot protruded over the kerb.
S's car was proceeding on the left side of the road near to the kerb edge in order to give a wide berth to the children that he first saw on the right side of the road. As he proceeded along the road adjacent to the left kerb edge he struck the back of O' C foot causing serious injury.
At first instance, the Judge dismissed the claim and held that S had not been negligent in failing to sound his horn or failing to stop. No fault was attributed to the actions of O'C. The Judge considered that S had acted reasonably as he had proceeded slowly and there was only a remote possibility that O'C would step backwards off the pavement. The claim for personal injury was therefore dismissed.
O'C appealed against this decision contending that the Judge had failed to take account of the real danger presented by the developing situation. It was submitted that S should have realised that there was a risk that O'C might act in an unpredictable way and should either have stopped or sounded his horn to warn the children of his presence.
It was held that the Judge was wrong to say that the possibility that O'C might step back off the pavement was remote. On the facts, S was negligent; he knew the street well and children often played in the area. The street was likened to driving in a playground and the duty therefore placed upon on him was high. He saw that O'C continued to play ball and was not looking at him. The onus was therefore S's, as an adult and as the driver of the car, either to sound his horn or stop to ensure O'C was still and aware of his presence while he proceeded.
This is yet another decision handed down by the Court of Appeal which sets an extremely high standard for motorists especially when children are in the vicinity. In the judgment it was appreciated that the requirement to stop or sound the horn may sound like a counsel of perfection, but the Judge determined that is not an unreasonable burden to place on a motorist who is driving close to young children.
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