The claimant, who was drunk and a member of a group of people in a similar condition, asked the defendant, a lorry driver, for a lift. When the defendant refused, the claimant climbed onto the front bumper of the defendant’s lorry, holding on by the windscreen wipers, rather than by an adjacent handle. The defendant twice asked the claimant to move and, when the claimant did not, the defendant drove off very slowly, intending to find a quiet spot away from the claimant’s companions where he could persuade the claimant to get off the lorry. After the lorry had travelled about 100 metres, one of the windscreen wipers became detached, the claimant fell off and, although the defendant braked immediately, the lorry struck the claimant, causing serious internal injuries.
The trial judge had found that there had been ‘no pressing need’ for the defendant to take such a potentially dangerous step as to drive off with the claimant standing on the front bumper of the lorry. He concluded that, in doing so, the defendant had failed to exercise reasonable care. He found that the defendant was liable to the extent of 25%, the claimant’s contributory negligence being assessed at 75%. The defendant appealed.
Held: The appeal succeeded. There had been no breach of duty on the part of the defendant.
Hale LJ said: ‘It is interesting that in this case, when discussing contributory negligence, the judge remarked that it was extraordinary that the claimant did not get off the lorry the moment it started to move, when it was going very slowly indeed, and as indeed one of his own witnesses had also wondered. The judge also commented that the driver, although in breach of duty, was put in a difficult situation and his was an error of judgment.
It seems to me that the judge in this case applied too rigorous a standard of care when asking himself whether what the driver had done was reasonable in all the circumstances. He referred, as I have indicated, to the fact that there was ‘not such a pressing need.’ Later on he referred to the fact that ‘the exigencies of the situation did not . . require’ the driver to drive the lorry down the road. That is putting it too high. It seems to me that had the driver indeed done what the claimant said he had done, that is driven in such a violent and erratic way as to indicate that he was trying to dislodge the claimant from the front of the lorry, there could indeed have been a breach of the duty of care because he would have been going well beyond what could be considered a reasonable reaction to the difficult situation in which he was placed. But one has to take all the circumstances of that situation into account when deciding whether what he did do was such a reasonable reaction. These include the fact that he was put into the dilemma by the claimant himself who was behaving in an offensive and thoroughly irresponsible fashion, displaying a complete lack of regard for his own safety, let alone for the difficult position in which he had put the driver and his mate. One also has to take into account the surrounding circumstances. It is was late at night (just after the closing time for this particular establishment), there was a reasonably large group of people on the pavement, some of whom at least were friends of the claimant, some of whom had obviously been drinking, and even if the others were not actually aggressive, the claimant was. The claimant’s intention may only have been to hold up the lorry for five minutes but the driver and his mate had no means of knowing that and were put in a very difficult situation. In those circumstances I would not consider it unreasonable to drive off very slowly with a view to stopping at some quieter spot away from the group to persuade the claimant to get off.
Furthermore, the judge could have taken more account of the fact that the claimant only fell off when he was engaged in an even more stupid and dangerous act of pulling at the windscreen wiper on to which he was holding. I would agree with Mr Kilcoyne on behalf of the respondent claimant that that does not necessarily rob the driving of all causative effect, but it does indicate something about the reasonableness of the driver’s conduct up until that point.
For my part I would say that there was in the particular circumstances of this case, in the very difficult situation in which the driver found himself, no breach of the duty to take reasonable care. For that reason I would allow the appeal.’
Schiemann, Tucker, Hale LJJ
 EWCA Civ 853
England and Wales
Cited – Ayres v Odedra QBD 18-Jan-2013
The claimant sought damages for serious personal injury, saying that the defendant had deliberately or recklessly driven at him as a pedestrian, knocking him over. The defendant had been tried and acquitted of motoring offences. He said that the . .
Lists of cited by and citing cases may be incomplete.
Personal Injury, Negligence, Road Traffic
Updated: 27 June 2022; Ref: scu.218195