Case Comment – Selda Dursan v J Sainsbury Plc (2015)  EWHC 233 (QB)
The deceased was killed by a vehicle driven by an employee of the defendant. He had been crossing a two-lane road on foot, between lines of queuing…
FactsThe deceased had been knocked over and killed by a goods vehicle driven by an employee of the defendant company. He had been crossing a two-lane road on foot, between lines of queuing traffic. He had begun crossing from the nearside pavement, crossing the inside lane of traffic behind a bus and continuing across the outside lane in front of the lorry. As he did so, the lorry moved forward and collided with him.
At the time of the accident it was dark, though the road was lit by vehicular, street and shop lighting. The deceased was wearing dark clothing; it was raining; the traffic was stopping and starting and pedestrians were crossing the road in various places even though there was a pedestrian crossing a short distance away.
The lorry was fitted with mirrors which complied with Directive 2003/97. They included a "Class VI" mirror on the nearside corner of the cab, giving a view of the blind spot immediately in front of the vehicle. It was common ground that once the deceased had begun to cross the road, the driver would only have been able to see him through his nearside mirrors, if at all. It was also common ground that there was no authoritative guidance as to the sequence in which visual checks should be made by those driving goods vehicles. The driver asserted that he had checked his nearside window, his nearside mirrors, and then his offside mirrors before moving forward, but had not seen the deceased. The joint experts' evidence was that those checks would have taken him between three and six seconds.
The deceased’s widow brought an action against the defendant company on behalf of the estate and dependants. She argued that the driver should have made a final check in his Class VI mirror before moving forward.
HeldThe driver was conscientious and careful and had given truthful evidence. There was no doubt that he had carefully carried out the sequence of visual checks he described. While there was some attraction in the submission that he should have taken a final look in his Class VI mirror before pulling off, all of the circumstances had to be considered.
It was apparent from CCTV footage that the lorry had been positioned slightly ahead of the back of the bus, so there was some overlap between the two vehicles. The deceased would therefore have had to negotiate a dog-leg around the back and offside of the bus before crossing in front of the lorry. When the driver began his sequence of visual checks, he would not have been able to see the deceased in his nearside window waiting to cross. Once the deceased began to cross, he would only have been visible through the nearside mirrors, and only for about half the time that he would have been visible had he not been obscured by the back of the bus.
Since there was no prescribed or recommended sequence of visual checks, it was for the driver to do what he thought appropriate, subject to the considerations described in the Highway Code and the handbook produced by the Driving Standards Agency. The driver could not be criticised for checking his nearside window and mirrors, including his Class VI mirror, before checking his offside views. The question was whether, after doing so, he should have re-checked his Class VI mirror. His evidence was that the checks revealed nothing to alert him to the possible presence of pedestrians in front of his lorry. That did not imply any lack of care on his part. Even if the relative positions of the bus and the lorry had allowed him a better view, he might well have finished his nearside checks before the deceased came into view. Given the timings, it was likely that he checked his Class VI mirror only a second or two before pulling off, and it would be unreasonable to expect him to have anticipated a pedestrian entering that space during that time. The possibility that a pedestrian would come down the offside of the bus and cross the front of the lorry was not one that ought to have been within the driver's contemplation.
Moreover, even if he had re-checked his Class VI mirror, it could not be established that the deceased would have been visible. While the circumstances demanded a significant degree of vigilance from the driver, there could be no justifiable criticism of his not re-checking his Class VI mirror before moving forward. The deceased had therefore failed to establish any lack of reasonable care on his part. In failing to take precautions for his own safety, whether by using the pedestrian crossing, wearing lighter coloured clothing or taking a less hazardous route across the road, the deceased had been the author of the accident.
This is an interesting case in which the court held that a driver who had knocked down and killed a pedestrian had done all that he reasonably could, in the discharge of his duty of care, and therefore could not be considered to be negligent. In the absence of authoritative guidance as to the sequence in which visual checks should be made, it was for the driver to determine the appropriate sequence, subject to the considerations in the Highway Code and the Driving Standards Agency handbook.