When failing to keep a proper lookout may be inevitable

In transport accident cases, it is common for legal argument to focus on the question of whether a defendant ‘failed to keep a proper lookout’. If the defendant is found to have failed this test, they are determined to have breached their duty of care to the plaintiff. We delve into psychology and neuroscience to reveal why apparently inexplicable accidents have a degree of inevitability to them that cannot be simply ascribed to ‘failing to keep a proper lookout’. We consider how perception works and how memory is reconstructed in trials. In other words, depending on the circumstances in the ‘lookout’ cases, there may have been no failure or breach of duty on the part of the defendant at all; that ‘failing to keep a proper lookout’ may be inevitable. We conclude that psychological evidence relating to the matters covered in this article may be highly relevant in lookout cases. Such evidence might divert the tribunal from the conclusion that a person is to blame for failing to see something, and that instead of ‘failing to keep a proper lookout’, the defendant was ‘unable to see’ something.