Atkinson v Kennedy & Grab and Deliver Limited [2024] EWHC 2299 (KB)
HHJ Freedman (sitting as a judge of the High Court) recently handed down judgment in a case defended by the Keoghs complex injury team. It involved a child pedestrian who suffered life changing injuries having been run over by a lorry.
The judge concluded that the accident occurred through no fault of the defendant and thereafter provided clarification on recent amendments to Rule 170 of the Highway Code, stating:
“The amendment to Rule 170 does require a driver to give way to pedestrian crossing or waiting to cross a road into which or from which you are turning… but this must be seen in context. It seems to me that it is not a mandatory requirement that every time a pedestrian is standing on a footpath, evincing an intention to cross the road, a vehicle must come to a halt and allow the pedestrian to pass. Obviously, the position is otherwise if the pedestrian is already stepping off the pavement. At all events, as is said so often, context is everything.”
Rule 170 was updated on 29 January 2022, inserting a new requirement that motorists ‘should give way to pedestrians crossing or waiting to cross a road into which or from which [they] are turning. If they have started to cross they have priority, so give way’.
The first defendant was driving an 8-wheeled HGV tipper wagon as part of his employment with the second defendant. The vehicle was to deliver sand and recycled aggregate to a private address in a residential area, the route of which took the vehicle past a primary school.
The vehicle was driving along the road past the primary school at the end of the school day, and there was a sizeable volume of both parked cars and pedestrians in the vicinity.
The HGV’s route took it past the school and thereafter a left turn into a junction with a minor road. However, as the vehicle was turning left into the side road, the claimant (a 7-year-old girl), together with another 6-year-old girl, ran from the kerb towards the nearside of the vehicle. The 6-year-old stopped prior to striking the vehicle, but the claimant unfortunately continued into contact with the side of the vehicle and was subsequently run over, sustaining serious injuries.
The claimant and her young friend were stood waiting at the junction for several seconds prior to the accident, under the supervision of an adult.
A case was brought against the first defendant on the basis that his driving fell below the standard of a reasonably competent and careful professional driver. The second defendant, his employer, was pursued on the basis of vicarious liability only.
It was agreed evidence, based on tachograph data from the HGV, that, whilst turning left and at the point of impact, the speed of the vehicle was in the range of 11.2 to 11.8 mph.
It was also agreed that the claimant and first defendant would have been visible to each other for a period of several seconds.
The claimant asserted the root cause of the accident was the first defendant’s failure to see them waiting to cross the junction. They were visible and he had a clear view from his elevated position. Moreover, he was aware of pedestrians on the other side of the road approaching the junction and it was incumbent upon him to keep a look out. It was claimed that, had he seen them, a reasonable driver would have assessed the situation and brought the HGV to a stop or, at the very least, watched, waited and assessed before completing the turn. Despite the rule amends taking effect after the accident, reliance was placed on the amendment to Rule 170 of the Highway Code, stating that it reflected the appropriate standard for all motorists at junctions.
The claimant also asserted that a turning speed of 11.2 to 11.8 mph was too fast, instead submitting that a speed of between 5-7 mph would have activated the vehicle audible warning system, thereby alerting the claimant and preventing her from entering the road.
The defendant submitted the first defendant’s failure to see the claimant waiting to cross the road did not imply a failure to keep a proper look. He was undertaking 3-point checks during the course of the manoeuvre, keeping a proper look out, noticing the claimant in his mirror immediately prior to the impact and reacting.
The defendants argued that it would impose too high a burden upon a reasonable driver to expect them to bring a vehicle to a stop before completing the turn, as it was not foreseeable that the claimant would step into the side of the vehicle. It was of note that none of the witnesses, including the supervising adult, thought the vehicle should have stopped before turning. The court also accepted the argument that a large vehicle coming to a complete stop may have created additional unnecessary risk because of blind spots when attempting to move away again, and the number of pedestrians in the area.
In relation to speed, 11.2 to 11.8 mph was asserted to have been comparably slow and reasonable in all of the circumstances. Furthermore, proper analysis of the expert evidence indicated that the accident could not have been avoided at a lower speed.
HHJ Freedman derived considerable assistance from the various lay witnesses who observed the accident (including that of the supervising adult), noting there was no criticism of the first defendant’s driving or speed.
The judge accepted that the first defendant’s “failure to see the claimant is to be seen in the context that he was focusing on the road ahead that he was concentrating and that he was driving with care and attention”.
HHJ Freedman concluded that the speed rage of 11.2 to 11.8 mph was a reasonable and safe speed in all of the circumstances. The first defendant was proceeding carefully and was able to see the claimant in his wing mirror prior to the wagon making contact with them. In any event, the judge accepted that the expert evidence was such that the first defendant had no opportunity to avoid the claimant, and that the collision would still have occurred at the lower speed of 7 or 8 mph.
HHJ Freedman concluded there was no such obligation as the pedestrians had a clear view of the HGV, the lorry was indicating, and the driver would have seen two children in the company of an adult.
“To suggest that it ought to have been within the contemplation of a reasonable driver that one or other of the children would walk into the side of the wagon without apparently seeing it, to my mind stretches credulity.”
There were also dangers in bringing the vehicle to halt, which the claimant expert accepted would create a substantial risk to pedestrians, particularly when setting off.
“With the benefit of hindsight, it is easy to say that this accident could have been avoided if the wagon had been brought to a halt. However, to my mind, to find that not to do so constituted a breach of duty is to impose far too high a burden on a wagon driver in these circumstances.”
It was found the accident occurred through no fault of the defendant with the claim being dismissed.
“It was not reasonably foreseeable that the claimant would step or jog into the side of the DAF and there were no measures which a reasonably prudent professional driver was required to take, (whether by reduction of speed or stopping) to prevent the occurrence of this accident. In any event, on the balance of probabilities, reduction of speed would not have prevented the accident. The only way in which the accident could have been avoided would have been for the defendant to stop his vehicle and I am satisfied that there was no obligation upon him to do so.”
This is a very sad case given the extent of the injuries sustained by such a young child, but as HHJ Freedman clarifies, “it goes without saying that the claimant is deserving of every sympathy. However, no case can be decided on the basis of sympathy”.
The changes to the Highway Code in January 2022 created confusion for drivers, insurers and lawyers alike, with many left questioning not only the risks of giving way to pedestrians stood still, but also the significantly elevated duty imposed upon drivers.
The obiter of HHJ Freedman provides a much welcome clarification which is both sensible and well-reasoned. As he states, context is everything!
David Burn and Emily Skinner of Keoghs were instructed by Steven Duffy of Collingwood Insurance on behalf of the defendants. Counsel for the defendants was Andrew Davis KC of Crown Office Chambers.
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