England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL

		Royal Courts of Justice
		7th February 1961

LORD JUSTICE,ORMEROD: This is an appeal by the Defendant Mr. John Sanderson, from a decision of Mr. Justice Salmon given at the Newcastle Assizes on the 21st January,.1960, relating to an accident which occurred to the infant Plaintiff, Robert Arthur Boardman, so long ago as the 19th August of 1955. I am bound to say that, in the course of the proceedings, some inquiry was made as to why, the accident having happened in August of 1955, the Writ was not issued until the 15th July of 1957 and the case did not come on for hearing until the 20th January of 1960* I was informed that, owing to very considerable congestion in the Civil Lists at Newcastle, there was delay in bringing on any civil action and that probably accounted for a considerable part of the time between the accident and the hearing. It does not, however, account for the whole of the gap and no satisfactory explanation has been given to this Court about it.

The only reason, of course, why I do mention this -and it has been necessary to mention it not only in this case but in others - is that when a long time elapses between an accident and a hearing in the court of first instance people's memories are apt not to be as good as they might be and it is not always easy to get the truth.

Be that as it may, the result of these proceedings was that the infant Plaintiff, Robert Arthur Boardman, was awarded the sum of £1250 against the Defendant, and the adult Plaintiff, Robert William Boardman, by whom the infant Plaintiff was suing and who was the father of the infant Plaintiff, was awarded the sum of £75.

There was a third party, Richard Percival Keith Keel and Henry George Block who had been trading as "K & R Motors" who were a firm, but they were discharged from this suit as the learned Judge came to the conclusion that there was no negligence on the part of Mr. Keel.

This Appeal was launched by the Defendant and he is asking in the first place that the Judgment be set aside and that judgment be entered for the Defendant against each of the Plaintiffs. In the second place he la asking that, if there is to be judgment against the Defendant, the Third Party should also be held to be wholly or at least partially liable for the accident; and thirdly the Appellant says that the adult Plaintiff, Robert William Boardman, should not succeed in any event.

The circumstances of the case were a little unusual and they arise as follows. The Third Parties, Keel and Block, were the owners of a garage in the Newcastle area which was known as Holmes and Keel Ltd., Motors, and they are advertised as "Sales and Service", and the night before the 19th August, 1955, the Defendant garaged his car at the garage of the Third Party. Now, those premises consisted, as is so often seen by the roadside of today, of a aeries of petrol pumps separated from the garage by a wall and then behind the petrol pumps there la a garage with two entrances, possibly more, where the servicing and so on was done, and in front of the entrance to that garage there was a fairly large piece of ground which has been described as a courtyard sloping gradually down to the way out to the road.

On this particular occasion the Defendant who, as I say, had bean garaging his car the night before in this garage, was taking the two Plaintiffs on a holiday to Blackpool. They all three went to the Third Parties' garage' The car was just inside the garage with its back part pointing outwards through the doorway, but before it could be released it was necessary for the Defendant to pay whatever he owed for garage. He tried to do it by paying the man on the spot, but, as so frequently happens in these cases, was told he could not do that and he asked the Adult Plaintiff, Robert William Boardman, to go round to the office and pay whatever was owing. That Mr. Boardman proceeded to do, and he walked along to another entrance which is shown on one of the photographs which is before the court, and went into an office there for the purpose of paying the money.

The infant Plaintiff at that time was eight years of age and he was left in the courtyard by his father. In the meantime the Defendant began to back his car out of the garage. The car was some five to six feet in width and the garage was twelve feet according to the evidence, and the car was much nearer the right hand side of the doorway as it backed out than its left hand side. Mr. Keel, who was one of the Third Parties, was on duty in the office and he, realising that this car was backing out and perhaps having had experience of other persons doing the same thing, went to direct the Defendant. The evidence is that he went somewhere behind the Defendant's car, but his attention was concentrated on the Defendant's off-aide which, of course, was the right hand side which was nearest to the side of the door, the pillar of the doorway, and the object was clearly, as he states in evidence, to prevent the car from coming into collision with the pillar and thereby doing damage either to the pillar or to the car or both, and secondly, of course, to prevent the car from coming into collision with any other cars that might have been in the courtyard. We do know that had this car as it backed out of the garage been turned over to its right it must have come into collision with the ether cars parked in the courtyard. Be that as it may, that is where Mr. Keel's attention was and it is clear from evidence that is also where the Defendant's attention was, because his evidence is that he was looking over his right shoulder, that he was watching Mr. Keel and paying attention to his directions and acting accordingly.

It was necessary, in order that this car should be properly backed out of the garage, that it should be backed straight out and should then be locked slightly over so that the rear end would turn slightly to the right in order that a course could be set for the way out of the courtyard onto the road; and that, indeed, is what the Defendant did.

Now in the meantime this small boy of eight years who, of course, was anxious to go to Blackpool with his father, appears to have spent some time, at any rate, in watching the cars by the pumps being filled with petrol. There is some evidence that also there was, in a corner of this wall separating the two parts of the courtyard, an air compressor for pumping the tyres, and there is some evidence that the boy played with that as boys will but that he was eventually chased away from it by the garage attendant. Be that as it may, it is not in dispute that as the Defendant backed his car out of the garage and either turned or was about to turn slightly to the right to get onto the course that he wanted, the small boy was standing very near to the near-side door of the car, and, unfortunately, as the attention of the driver was on the other side the near-side front wheel ran ever the small boy's foot and caused the injuries of which he complains and about which there is no dispute. He screamed and tried to free his foot by kicking with his free foot on the near-side door of the car. His father, the adult Plaintiff, who was paying his friend's garage fees at the office, heard the scream, rushed out to the yard and saw his small son with his foot caught or trapped under the near-side front wheel, and assisted in releasing him and later suffered some symptoms of shock in respect of which he has been awarded by the learned Judge the sum of £75.

Now the Appeal today is based on two grounds. In the first place it was submitted by Mr. Richardson who has, I think, urged with very great cogency and persistence, all that could properly be urged in favour of the Appellant in this case, that there could be no negligence on the part of the Defendant but that, if there was negligence at all in the way this car was backed out of the garage, it was negligence on the part of Mr. Keel who was superintending the process of backing the ear out of the garage. However, the learned Judge has decided that the person who was in charge of the car - and, I think, rightly decided - was the Defendant himself. He was driving the car and he was responsible. His attention was concentrated entirely on what was happening on his right hand side.. He was looking over his right shoulder. He was watching the movement of Mr. Keel and listening to his instructions and, no doubt, he was watching the pillar on his immediate right to ensure that his car was not coming into contact with it, and, in consequence, he was paying no attention to what was happening on his near-side and as to who was on his near-side. Of course, he could have seen the boy had he taken the trouble to look. On the other hand it is submitted - and very strongly submitted - by Mr. Richardson that the real negligence here was on the part of Mr. Keel. He was standing behind the car and he was responsible for any movements of the ear, that is to say, he directed it - this is the way it is put - and in consequence he should have been able to see the boy and realise that he was in a position of danger and give the appropriate directions to the driver of the car, which he did not do,

Well that, of course, is an argument to which considerable force can be attached, but the fact remains, as the learned Judge found - and, I think, properly found - that the driver of this car was in charge of the car, that he was the person who was responsible. He could not say that some other person who was concentrating on a particular portion of this manoeuvre could be responsible because he had not given warning of the presence of a small boy and that, in the circumstances, although there was no gross negligence on the part of the Defendant, there was certainly enough negligence on his part to render him responsible for this injury to this small boy.

It must be borne in mind that the moment when this child was injured according to the evidence was the moment when the car was changing direction. That must surely be a time when extra care must be taken in case there is somebody standing by the car who has taken it for granted that the course which the car was taking was one which it would continue to take. That is frequently not so, but it must be the duty of the driver to ensure, before he takes another course, that it is safe for him to do so and that is something which this particular driver failed to do.

The evidence of Mr. Keel is that he could see, I gather, through the window of the car. He does not say which window. It must mean either the rear window of this saloon car, that is to say the back window, or one of the windows on the rear door of the car, and he says he could see what appeared to be the small boy clambering up to the near-side to see if his father was in the car, no doubt human enough and reasonable enough conduct on the part of a small boy. He was very anxious to go to Blackpool with his father and he had a suspicion that his father and Mr, Sanderson were going without him which would naturally cause him to be in a little bit of a panic.

The learned Judge, as a matter of fact, has not accepted that evidence and that, according to the learned Judge, was not the position; but, be that as it may, there can be no doubt that at the time this accident happened this small boy was standing very close to the car on the near-side, just behind the front wheel, and this change of direction which, of course, would throw the front wheels a little more to their near-side had the effect of causing him to come into contact with the wheel and for his foot to be trapped in the way that has been described.

In those circumstances I feel bound to say for my part that although it may be that there is no gross negligence on the part of this Defendant, and although clearly the case is one which is very near the borderline, it is not a case in which this Court should interfere, and for my part I am content to accept on this issue the findings of the learned Judge who tried the case.

However, that is not an end of the matter. The learned Judge found that, because of the circumstances of this accident, the adult Plaintiff, the boy's father, suffered some shock. It is not put very high; it is not put as more than slight shock, and in consequence he claimed damages against the Defendant, and the learned Judge has awarded as damages the sum of £75, again, I think, an indication that he did not regard the shock to the boy's father as being a very serious matter. However the position taken by the learned Judge who tried the ease is set out on page 21 of the Judgment in which he says, having dealt first of all with the general circumstances of the case:

"It fellows in those circumstances that there must be judgment for the infant Plaintiff against the Defendant, and I think judgment also for the father. The father's claim is by no means a very grave claim, but he did suffer a considerable shock when he saw this boy of his with his leg injured and that did cause him some alight illness".

He then goes on:

"I do not propose to deliver an elaborate judgment on the law applicable to this case, but it seems to me this ease is distinguishable from the ease of King v. Phillips (reported in 1953, 1 All England Reports, p. 617)". (I think I should say that that case is now reported in 1983 1 Queen's Bench Division at page 429.)

"That was a case of a taxi-driver negligently backing a taxi-cab and running into a child on a tricycle. It so happened that the child's mother lived 70 or 80 yards away and heard screams, looked out of her window, and was extremely shocked. In that case, the majority of the Court took the view that the claim was not maintainable because the driver could not reasonably foresee that if he drove negligently and injured the child the mother would be immediately upon the scene of the accident; it was quite by chance and unknown to the driver that she happened to live 70 or 80 yards away. In this case Mr. Sanderson did know that Mr. Boardman was only a few yards away and therefore Mr. Sanderson could reasonably have foreseen, if he were negligent and as a result of that negligence he did injury to the boy, that the father would be immediately upon the scene and might be shocked as, indeed, he was shocked".

Now, what are the circumstances which the learned Judge clearly had in mind when he was considering this portion of the case? It must be remembered that the Defendant, that is Mr. Sanderson, and the adult Plaintiff, Robert William Boardman, were friends. According to the evidence which was before the Court they were very old and close friends. They had gone to this garage together, the three defendants, John Sanderson, the adult Plaintiff, Robert William Boardman and the adult Plaintiff's son, Robert Arthur Boardman who was then a small boy eight years of age. That the Defendant knew because they had all gone together. Mr. Boardman, at the request of the Defendant, had gone to the office. That again the Defendant knew. He knew also, or he could have known had ha taken the trouble to look, that the email boy did not go to the office with him, but that he was playing about, as small boys will, in the courtyard, and he knew also that if, by his careless driving or his breach of duty, call it what you will, he did injury to this, small boy, the father was well within earshot of the boy's screams and could very easily run out to his assistance if necessary; and, of course, that is exactly what happened.

The Defendant, as the learned Judge has found -and which this Court has no reason to question - was guilty of some negligence. As a result of that negligence, this small boy was hurt.

The description of the accident which has been given in the evidence, about which there can be no dispute, is that the boy's foot was trapped under the front near-side wheal of this car and. that he was struggling to free it, and, at the same time, kicking the panel of the near-side door with his free foot in an attempt to get away and screaming. The evidence is that the father who was very near and close by heard the screams which he recognised as his son's screams. He knew that the son was playing in the yard and he know that there were cars being moved in the yard and, naturally, his first instinct was to run to the assistance of his son whose screams he heard. That he did, and having run to the assistance of this boy he was met by the spectacle of his son with his foot trapped, as I have already described. Is it surprising, in those circumstances, that the father did not some days later develop symptoms of shock of which, in this case, we have heard?

Now, Mr. Richardson, who again has argued this point with skill and considerable persistence, has submitted that this case must be considered on a similar basis with the case of Hay or Bourhill v. Young, [1943] AC 92, which is reported in 1943 Appeal Cases at page 92 and is, I suppose, in many ways one of the leading cases on this question of injury by shock, but in the caste of Hay or Bourhill v. Young, [1943] AC 92, the Plaintiff who was a fishwife loading fish from a tramcar into her basket, did not see the accident happen and only saw the results of the accident when she was moved by the noise to go and see what had happened, whereas in this case also the adult Plaintiff did not see the accident but was only moved to see what had happened when he heard his son scream, and Mr. Richardson has endeavoured to submit that there must be a line of distinction drawn somewhere and that that line of distinction must depend on whether the accident was witnessed by the Plaintiff or not because if, in this case, the Plaintiff did not witness the accident he cannot succeed.

There has been no authority produced to the Court to bear out that submission and, for my part I must say I find it difficult to understand why the line should be drawn in that arbitrary fashion. It may be that, in some cases, that is a proper line to draw as in Hay or Bourhill v. Young, [1943] AC 92, and it may be that, in that case, as in many cases the proposed Plaintiff does not come within the area of contemplated danger. On the other hand, clearly the facts in these cases are infinitely variable and it would be difficult, if not impossible, to draw any line of distinction and say in the one ease the Plaintiff should succeed and in another case the Plaintiff should not succeed.

In this particular ease it does appear that all the necessary factors are present which should entitled the learned Judge to come to the view that the Plaintiff should succeed. The Defendant knew that the infant Plaintiff was in the yard and that any carelessness in driving on his part might result in injury to the infant' Plaintiff as, in fact, it did. He knew the boy's father was within earshot and he knew also the boy's father was in such a position that if he heard a scream from his son he was bound to run out, human nature being what it is, to see what was happening to the boy; and that is, in fact, what happened and in those circumstances it appears to me that the learned Judge was well in order in coming to the conclusion which he did.

We have been referred to portions of the speeches of Lord Wright and Lord Porter in the case of Hay.or Bourhill v. Young, [1943] AC 92, but, if I may say so with the greatest possible respect to the learned Law Lords, those speeches do not appear to take this case very much further, but I would like to draw attention to a portion of the speech of Lord Wright to which reference has been made. That is on page 107 of 1943 Appeal Cases. He says this:

"This general concept of reasonable foresight as the criterion of negligence or breach of duty (strict or otherwise) may be criticized as too vague, but negligence is a fluid principle, which has to be applied to the most diverse conditions and problems of human life. It is a concrete, not an abstract, idea. It has to be "fitted to the facts of the particular case".

I think I need say no more than that if the facts of this particular case are fitted to the concept of negligence it is clear that a duty was owed by this driver, not only to the boy but to the near relatives of the boy who were, as he knew, on the premises, within earshot, and likely to come upon the scene if any injury or ill befell that boy.

In the circumstances it appears to me to be clear that the father is entitled to succeed and I, for one, would be, as I said in the first part of this Appeal, extremely reluctant to disturb the findings of the learned Judge in this matter. It follows from what I have said that I would dismiss this Appeal on both grounds.

LORD JUSTICE DEVLIN: I agree.

LORD JUSTICE DANCKWERTS: I also agree. I am unable to differ from the conclusion reached by the learned Judge on the principal issue of negligence; and as regards the damages awarded to the father of the infant Plaintiff for the shock experienced by him, it seems to me that the case satisfies the relevant test, being that of reasonable foreseeability discussed by the House of Lords in the case of Hay or Bourhill v. Young, [1943] AC 92, and by the Privy Council in Overseas Tankship (UK.) Ltd., v. Morts Dock & Engineering Co. Ltd., [1967] 1 AC 617

The Appeal was dismissed with an order for costs.