Driving hazard

Few readers will have been fortunate enough to avoid making a motor claim. Driving is fraught with potential hazards, not least the dangers posed by other drivers, pedestrians or obstacles. Two recent cases explore how drivers should respond to the problem of animate obstacles. They make sober reading because the incidents could happen to anyone. The fact that they did not settle, as the majority of motor claims do, suggests that there is debate about the duty of care owed by drivers in these circumstances.

In the Court of Appeal case of Frank Green v Michelle Bannister [2003] the defendant unsuccessfully appealed against a finding of negligence and contributory negligence (Claimant/Def 40:60) following an accident reversing at night in a cul de sac. Bannister ran over the claimant whom she had not seen lying intoxicated in the road.

Although it would probably not occur to many people that someone might be asleep in a road, negligence was established since the defendant admitted she had not checked both sides of the road and all mirrors. Had she done so the court concluded that she would have spotted the claimant and averted the accident.

Two important messages can be gleaned. First, there tends to be an onerous burden on motorists seeking to argue that a pedestrian should bear the lion's share of responsibility. This is because a vehicle is treated as a dangerous weapon. Secondly, the decision reinforces the need to bear in mind the basics of the Highway Code. This states that when reversing you must use all mirrors, check for blind spots and look out for pedestrians or 'obstructions'. If you can't see properly you should ask someone to guide you. No specific warning is given in the code about individuals lying in your path.

Ironically, the more experienced the driver, the longer it will probably have been since they have read the code. There are modern provisions that they may never have seen, for example addressing the use of mobile phones.

The code applies to all road users including pedestrians and, by virtue of the Road Traffic Act [1998], while it lacks the force of statute, failure to observe a rule is relevant in legal proceedings. Reminding oneself of the fundamental principles of driving might prevent accidents and it is perhaps unfortunate that the code appears to be unavailable over the internet unless you are a learner driver; otherwise you have to buy a copy.

Bannister can be contrasted with the Queen's Bench decision in Parker v Neil [2003], where the defendant ran over another drunk person, this time on an unlit rural road in the early hours. Neil, who was driving within the speed limit, said he believed, until too late, that the dark object on the road was an empty bag.

Here the claim failed because no fault was found with Neil's driving.

Although it was conjecture, had his lights been on full beam, it was felt that this would have given him only a further split second to assimilate a wholly unexpected situation. Reaction time was short and he could not be criticised for failing to take evasive action.

The key point is for drivers to remain alert to any obstacles at all times. What then should the ordinary prudent motorist do when they see one? The answer is that motorists should avoid doing anything that they might reasonably anticipate as likely to cause injury. What you can expect to find on a road is relevant - a prone figure being the last thing to anticipate at 4.30am on a country lane. Significantly, in Parker the driver noticed something but mistakenly thought it was innocuous until too late.

Liability is more difficult to prove where someone has to make a split second decision and their behaviour is beyond reproach.

What about animals? One might have expected the code to advise motorists not to swerve because an animal crosses their path without warning. The most important course is not to lose control of the vehicle. While it is desirable to avoid injury to animals the potential risk to human safety is paramount. It is hard to see how a driver would escape liability if he swerved to avoid a cat and in the process mounted a pavement and hit a pedestrian.

The assumption must then be made that the principal responsibilities of a driver in these circumstances is to remain in command of the vehicle and have all possible regard for human safety.

Earlier cases offer insights into the arbitrary manner in which the law can be applied in this context. In one instance, Welch v O'Leary [1998], the defendant was held liable to a motorcyclist behind her when she made an emergency stop to avoid hitting ducks. The defendant cited authorities relating to domestic animals which, in view of the outcome, might suggest that the court's approach depends on what kind of animal you are trying to avoid.

A leading decision on motor collisions involving dogs, Sutherland v Glasgow Corporation [1941], clarifies that each case is fact sensitive. Accordingly, in Parkinson v Liverpool Corporation [1950] a bus driver was not penalised for breaking suddenly to avoid a dog, notwithstanding that a passenger, whom he did not know to be standing up fell to the floor. Crucially, those seated came to no harm.

Faced with this type of contingency, and while drivers certainly act instinctively, their thought process will be probed in the accident's aftermath. In Parkinson the driver explained that he hoped to save the animal's life without endangering passengers. He did not know whether he had standing fares because of a screen. The court found that he acted as any ordinary and careful driver would in a similar 'emergency'.

Today, and while all the circumstances would be relevant to the factual matrix, including whether passengers should have been seated, it is difficult to see how priority would not be given to their injuries in similar contingencies.

It is to be hoped that bus drivers are given guidance from their employers on how to react in these circumstances.

- Penny Lewis is marketing consultant and Nick Bathurst is a partner at Badhams Law, a division of Parabis Law.