Peter Freeman successfully defends a haulier in a fatal accident claim

Dursan v J Sainsbury Plc (26th, 27th January & 12th February 2015) – RCJ

Peter Freeman represented D in a fatal road traffic accident. The driver of a HGV was in stop-start traffic in a busy area in which he was aware of pedestrians crossing from both sides in between vehicles. It was dark and raining, although the area was lit by street lamps and lights from shops and vehicles. The deceased left the footpath, crossed a bus lane and then continued across the front of the HGV. C submitted that the driver should have made a final check in his Class VI mirror before moving forward. The driver did not make that extra check but moved forward whereupon the deceased lost his life.

HELD: In the absence of prescribed sequence of visual checks in the Highway Code or Driving Standards Agency Handbook, it is for the driver to do what he considers appropriate to all the circumstances. The driver was conscientious and careful and had given truthful evidence: he had carefully carried out the sequence of visual checks he described and those checks revealed nothing to alert him to the possible presence of pedestrians in front of his lorry. 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. In failing to take precautions for his own safety, whether by using a pedestrian crossing, wearing lighter coloured clothing, or taking a less hazardous route across the road, the deceased had been the author of the accident.

Judgment for defendant.

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