20 MAY 2015
Selda Dursan v J Sainsbury PLC  EWHC 233 (QB)
12 February 2015
Mr Justice Jeremy Baker
The claimant died after being hit by a large goods vehicle ('LGV'). His estate claimed the defendant driver was negligent in failing to check his mirrors. The court held that, in the absence of authoritative guidance as the sequence of visual checks that should be made by a LGV driver, it could not be said that he had acted negligently.
At about 17.30 on 23 December 2011 the claimant was crossing the road from west to east when a LGV collided with him causing injuries from which he died. The LGV driver was acting in the course of his employment at the time.
The claimant had crossed the inside lane, where there was another vehicle already parked. Having emerged from the rear of the stationary vehicle, he then started to walk across the next lane and in doing so went into the path of the defendant's vehicle which collided with him and pushed him along the road surface. It was dark and raining and the traffic conditions were congested. The claimant was wearing blue jeans and a black coat.
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The two experts instructed in the case prepared a joint report for the court, in which they agreed in the main that the LGV was stationary for some 6 or 7 seconds before moving off and that it would have taken 3 1/2 or so seconds for the claimant to go from the kerb to the point of impact. This would have afforded the driver very little opportunity to stop or slow down in order to avoid an accident.
The vehicle had been fitted with mirrors which complied with the EU regulations. The two experts agreed that the claimant's clothing would have provided little contrast with the asphalt road surface, making him less visible when viewed through the driver's mirrors. The shadow of the other stationary vehicle would have reduced visibility further. The driver stated that the order he had checked the mirrors were: nearside mirrors, offside mirrors and then looking through the windscreen before setting off.
The experts agreed that, whilst there was some guidance in the Driving Standards Agency guide to 'Driving Goods Vehicles', there is no single recommended order in which mirrors should be checked or the time required to carry out these checks.
The court held that the driver was conscientious and careful in making the checks in order as described to the court. While failing to make a final check might have amounted to negligence, there was no prescribed or recommended sequence of visual checks and in all the circumstances the driver had acted reasonably. The court added that, in failing to take any precautions for his own safety such as wearing more conspicuous clothing or choosing a less hazardous path, the claimant was the author of his own accident.
Adam Dyl and Louise Taylor, Anthony Gold Solicitors