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The case law thread

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mrcharly-YHT:
Another vote for it being a sticky.

tiermat:
A very useful thread, and one I hope I never need to use....

Another vote for making it sticky....

Access Legal Guy:

Recent case from The Court of Appeal this year

Smith v Hammond [2010] EWCA Civ 725

Smith, a 13 year old was employed by his local Co-op as a paper boy. His round included houses on both sides of the road and therefore he had to cross the road from time to time. After leaving the driveway of one house his intention was to cross the road to deliver his next paper. Hammond had seen Smith at the side of the road looking in the opposite direction. It was accepted that Hammond was not over the 30mph speed limit, but was virtually doing 30mph. Without looking Smith cycled out across the road and into the path of a DAF flat bed lorry driven by Hammond. Hammond braked as hard as he could and swerved but was unable to avoid the collsion. Smith was severly injured and Hammond suffered PTSD as a result.

Smith brought a claim against the Co-op, for failing to take proper care to prevent him from injury and against Hammond for negligent driving. Hammond counter claimed for his injury.

Expert evidence was provided to the court opining that, due to reaction times, it would not have helped prevent the accident if Hammond had used his horn to warn Smith.

At first instance the Judge found that his own experience was that a person reacted instantaneously to the sound of a horn. The trial judge found Hammond 40% to blame (for not sounding his horn) - Hammonds counterclaim was dismissed in full as the judge was unable to accept that a person of smiths age would foresee physical injury to  the driver of the lorry in those circumstances. Smith was 605 responsible.

Hammond appealed

On appeal, the first instance decision was changed.

The appeal court held that Hammond was not negligent in failing to sound his horn at the same time as he was engaged in efforts to avoid the collision. The court also advised that the first instance judge was within his right to not accept the expert evidence but in doing so he should give reasons why and not merely say that it did not accord with his own experiance.

It was found that smith, although 13, was careless of his own safety and that of Hammond. Hammond was not to blame for the accident and his counterclaim had to succeed.

The Co-op agreed to pay Hammonds damages.


On the face of it the appeal decision is good law, but the whole case does leave a number of questions, for which I do not have the answers and some are political rather than legal. For instance;

Is driving a DAF flatbed lorry at 30 in a 30 negligent in itself?

Many argue for a mandatory 20mph speed limit in residential areas - if a 20mph limt was in place and Hammond was at 20, would he have had that little extra time to a) sound his horn, B) stop, or C) collide with Smith at a much reduced speed resulting in less severe injuries?

Should any lorry even be in residential areas?

PhilO:
Hmmm...

I'm struck by the complete misunderstanding of how a horn should be used by both courts in that scenario;

What a driver in that situation should do (arguably) is to sound his/her horn to draw the attention of the pedestrian when they observe that the pedestrian hasn't looked in their direction, but before the pedestrian steps out.

It's true that once the pedestrian steps out then it's too late for the horn to do any good, but too many people don't consider its use at an earlier stage.  :facepalm:

Sadly, there are plenty of through-routes with houses on them, so preventing trucks from entering residential areas is a non-starter (and how do you define a residential area in law, anyway). Plus, it'd be a bit tough on residents who need to have things delivered, or move house...  ;)

The argument over lower limits for trucks in 3o zones has some merit, I'd have thought. Larger trucks are already restricted to 40mph on NSL single carriageways, and allowing them to do 30 on residential roads doesn't look very consistent with that.

Access Legal Guy:

The decision was overturned on the basis that Hammond could not reasonably have been expected to sound his horn until Smith began to move out into the road and by then it would have been too late anyway. Despite his age Smith had to be responsible for his own safety.

Through routes, rat runs, whatever one calls them, with our infrastructure they are not the place for heavy goods vehicles. If they are the place, then speed needs to be reduced and maybe...without being too controversial, liability should rest with them following an accident because of there potential damage.

Sounding a horn every time somebody might do something unwise, could lead to a cacophony of noise in residential areas. Worse still, competition between drivers as to who hsa the best horn!

sadly, these things are unlikely to ever be looked at politically because they will be deemed to be an attack on the motorist.

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