A warning for all car drivers – apportioning blame between car driver and child pedestrian

A recent Supreme Court decision has provided useful clarification on how courts apportion blame in road traffic accident where a child pedestrian is knocked down by a car.

A child stepped out from behind a school minibus into the path of an oncoming car. She was knocked over and sustained severe injuries. At Trial, the judge assessed the child as being 90% to blame – the Court deciding that in all likelihood,  the car driver could have done little to avoid the collision on the basis that a child, on a dark afternoon, had stepped out from behind a parked vehicle without warning.

On appeal in Scotland, this was reduced to 70%.  The Supreme Court, however, reduced this further to 50% – ie the car driver and child were found equally to blame.

In reaching their decision, the Court held that the driver’s and child’s conduct should be considered on an equal footing in that had the child waited until the car had passed, she would not have been knocked down. On the other hand, if the driver had slowed to a reasonable speed and kept a proper look-out, he would have avoided the child.

Two other factors were taken into account, namely 1) the fact that if a car collides with a more vulnerable pedestrian, the very nature of such an accident means that the pedestrian will inevitably suffer serious injuries; and 2) a 13 year old child will not necessarily take the same care as an adult and the driver, had he taken care to note that a school minibus had drawn up, should have been put on notice of the possibility of a child stepping out from behind it.

So, what lessons can be learnt? Most car drivers have experienced that chilling moment when they have narrowly missed a child who had darted in front of them without warning and it is fair to say that in circumstances where a pedestrian does appear without warning from behind a parked vehicle,  the courts generally accept that it would have been difficult for the car driver, who had been driving at an appropriate speed, to avoid a collision and in these circumstances, the pedestrian’s claim would fail.

“But”, says Vicki Wright, Personal Injury Solicitor at Swain & Co, “this recent case puts the onus firmly on the car driver to drive at an appropriate speed for the circumstances and to be alert for all pedestrians, particularly for children around schools or an ice cream van, for example, where you should be more prepared to expect the unexpected”. In this particular case, the driver was driving too fast and in addition, should have been aware of the parked school mini-bus.  He was therefore held 50% to blame for colliding with the child who stepped out suddenly from behind the minibus.