O’Connor v Stuttard [2011] EWCA Civ 829

A 9 year-old boy was out playing on a quiet street with a group of friends.

As the boy stepped backwards off the pavement, he was struck by Mr Stuttard’s car, which was proceeding very close to the kerb. The boy suffered a serious injury to his foot.

At first instance, the judge applied the “Upson Test” – i.e., whether it would have been apparent to a reasonable man in the circumstances that there was a possibility of danger emerging. If this test is answered in the positive, the driver should either slow down or sound his horn or both.

Applying the test, the Judge concluded that Mr Stuttard had not been negligent in failing to sound his horn or failing to stop; his act of proceeding slowly had been sufficient as there was only a remote possibility that the boy would step backwards off the pavement.

On appeal, this decision was held to be incorrect. Mr Stuttard had, in fact, been negligent; he knew the street well, and knew that young children often played there, meaning that the duty on him was high. He should have ensured that the boy was aware of his presence before he proceeded. This was not an unreasonable burden to place on a motorist.

A link to the full decision can be found here.