England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(His Honour Judge Heppel QC)

		Royal Courts of Justice Strand London WC2 Tuesday, 26th June 2001

1. LORD JUSTICE MAY: This is a renewed application for permission to appeal, made in sad circumstances by Mr Russell on behalf of Stagecoach South East London and Kent Bus Company Limited, against a decision on liability in a road traffic accident made by His Honour Judge Heppel QC on 3rd April 2001 in the Queen's Bench Division. It is an application which I refused on paper, and I am grateful to Mr Russell for the way in which he has renewed this application and explained to me the way in which he, on behalf of his clients, now puts the case. I put it that way because he has slightly (but only slightly) modified the way in which the late Jonathan Howard put it on paper.
2. It was an accident in which a double-decker bus driven by Mr Colin Bursey collided with the claimant, Mrs Julia George, who was then aged 44, at about ten o'clock in evening on 14th May 1997. The bus was going north up Regent Street. On the left is Hanover Street. Immediately before the left-hand turn into Hanover Street is what is referred to as a pelican or pedestrian crossing. The left turn into Hanover Street, at any rate for a double-decker London bus, is not easy. It is not easy because the entrance to Hanover Street is quite narrow. It is narrowed because the southern pavement of Hanover Street, at the point where it meets Regent Street, goes out of it northwards and so narrows the turn.
3. Mrs George had been out that evening. She was travelling in a taxi to a railway station, but she wanted some money and she asked her taxi to stop in Hanover Street so that she could go to the Woolwich Building Society (or Bank, as it may then have become). This branch of the Woolwich is shown in the very good photographs just inside Hanover Street, on the left-hand southern side as the bus was turning left. The taxi had parked slightly further into Hanover Street and on the right-hand side, so that Mrs George had to cross Hanover Street from north to south to get to the cash machine. It was after she had done this and was going, perhaps in a bit of a hurry, back across Hanover Street that she and the bus collided. The point at which she and the bus collided was approximately in the centre of the road. The point of impact with the bus was not immediately head-on, but on its left-hand side, somewhere in the region of the front passenger door.
4. The area was well lit. Alcohol had no bearing on the accident. The judge described how the bus driver was making a tight turn because of the features of the road junction to which I have referred. It was necessary in order to manoeuvre the bus round this corner for the front off-side of the bus to come quite close to the northern kerb of Hanover Street, and avoiding coming into contact with that kerb was, on the evidence, one of Mr Bursey's concerns.
5. The claimant gave a statement to the police. She suffered head injuries as a result of this accident and she had no recollection of the collision. Her last recollection was, as the judge put it, "seeing if it was safe to cross from the kerb". She said in a witness statement that she had started to cross the road and at the same time put her purse back into her handbag. She was looking down into her handbag and the next thing she remembered was waking up in hospital. The judge said that she was a patently honest witness, but that he could not in the circumstances place much reliance on what she had said as being an accurate recollection by her of the events that evening.
6. Mr Bursey, the bus driver, in his witness statement said that he signalled an intention to turn left into Hanover Street and positioned his bus fairly centrally in the carriageway in Regent Street, it being necessary to do so in order to effect the left-hand turn. His evidence was that he looked on both sides of the pelican crossing to make sure that there were no pedestrians who might be about to attempt to cross and also on either side of Hanover Street. He saw no pedestrians close to the edge of the pavement and began to turn at a speed of somewhere between eight and twelve miles an hour. As he was about three-quarters of the way through the turn and was straightening up in Hanover Street, he glimpsed a fast movement on his left out of the corner of his eye. He immediately braked and, as he came to a halt, there was the bang. (The transcript says "... there was the bag", but I suspect that means "bang"). In his oral evidence he said:

"As I was about straightening up, I got a movement in the corner of my eye and braked straightaway."

7. The passenger door at the front of the bus was largely clear glass or similar material, so the driver looking through that door had a view of what was immediately beyond.
8. There was other evidence. A Miss Sandra Hayes was a passenger on the near-side of the bus, about half-way back. Her witness statement included that the bus "made a very fast left-hand turn" out of Regent Street and into Hanover Street. She saw the lady trying to cross, but the bus, according to her:

"... was going too fast to avoid impact and the pedestrian at that particular moment seemed unaware of the danger."

9. The witness statement said that it was quite probable that the bus driver did not see the lady as he turned the corner but, being a driver, she herself knew that when one turns a corner one looks at all the approaching angles. Miss Hayes also said that, whilst she accepted that it was unlikely that the driver saw the lady, it is quite clear that she herself saw her and she was not the driver. She said that the bus made no attempt to stop.
10. Mrs Lucia Paul was sitting on the off-side of the bus, half-way down, just opposite Mrs Hayes. She recounted how the bus turned left into Hanover Street and, as it did so, she stood up because Hanover Street was the stop where she was going to get out. As she stood up, she looked ahead through the side window on the near-side of the bus and she saw:

"... a woman in the road walking towards the bus, as if in a hurry or something, and looking to her right."

11. This woman did not seem to have seen the bus. Mrs Paul sat down and almost immediately, according to her, the woman walked into the side of the bus. Her view was that:

"... the bus driver could not have seen the pedestrian, as she was behind him."

12. So those were two differing views, in detail, from two lady passengers on the bus.
13. There was a Mr Morris who was waiting, and had been waiting for rather a long time, for a business associate to turn up. He had his car parked in Hanover Street and he was looking out of the window, including via his rear view mirrors, for this business associate to arrive. Thus seated and with that vision, he attested to the fact that he saw the bus making a left-hand turn at what he regarded as between ten and fifteen miles per hour, or perhaps less, from Regent Street into Hanover Street. At the same time, he saw:

"... a woman walking into Hanover Street, just where it widens. ... She was about half-way across the road when she looked to her front and immediately hit the side of the bus. She was near the door on the near-side but behind the front wheel. At that point the bus had more or less completed its left turn manoeuvre."

14. The judge concluded that he was satisfied that Mr Morris had a good view. Mr Morris said that he shouted out to the claimant, and the judge accepted that evidence, although, he being in a car, she probably would not have heard. Mr Morris, said the judge, described the claimant as "looking back over her shoulder into Regent Street", and he accepted that evidence. It was, said the judge, important and consistent with the claimant either not seeing the bus or not appreciating that the bus was turning left or about to turn left. It was, in the judge's judgment, certainly evidence that the claimant was looking for traffic. The judge found that the claimant started to walk across the road either immediately before or just as the bus started its turn.
15. There was evidence from an engineer called Mr Selzer, who gave opinion evidence and, to some extent, factual evidence about distances and speeds. I shall return to some of those details in a moment.
16. The judge then said this at the top of page 11 of his judgment:

"The evidence of the eye witnesses, while inevitably not entirely reconcilable the one witness with the other, is in my judgment to the general effect that as this bus was turning into Hanover Street, this claimant was there to be seen and could be seen, walking off the pavement and into the road. She was, as I have found, well out into the road, about half-way across, when the collision occurred. It follows that had Mr Bursey reacted a second or two before he did, this accident would not have occurred, regardless of the fact that the claimant was plainly not looking where she was going."

17. The judge turned to the evidence of Mr Bursey and recounted a passage where he described what he did and what he normally does. The judge found that Mr Bursey did not follow his own practice in the matter of observing pedestrians. The judge then said:

"There is much force in the submission of Mr Howard that the difficult part of this manoeuvre and the danger point so far as a bus driver is concerned during the turn is the north pavement of Hanover Street. But it is incumbent in my judgment for the reasonably competent driver to be continually looking in all directions. If his passengers could see the claimant, so could he have done and in my judgment he should have done. It should have been, I find, more than a chance glimpse. Because the claimant was in the road (as I have found as a fact she was) she was entitled to precedence according to para 146 of the Highway Code."

18. Upon that basis the judge found that the bus driver:

"... did fail to keep a proper look-out and was thus negligent and his negligence was causative ... of the accident."

19. He then considered the extent to which the claimant herself had also contributed to that accident, and he reached the conclusion that that contribution was 40 per cent, leaving 60 per cent with the bus driver and the defendants.
20. The written grounds of appeal suggest, in paragraphs 1 and 2, that the judge misdirected himself because he set the defendant's driver too high a standard. The way in which it was put in writing is not exactly the way Mr Russell puts it today, but Mr Russell also, I think, in effect suggests that the judge was making his findings on the basis of a counsel of perfection and not on that of the reasonably competent bus driver.
21. The written grounds of appeal, in paragraph 3, suggest that the judge erroneously found that the claimant was there to be seen by the driver as he commenced his turn. It is suggested that that finding was not supported by any evidence. I think that Mr Russell slightly modifies that, because in his oral submissions the first thing he did was to say quite frankly that he was not able to submit in all the circumstances that the judge was wrong to find on the balance of probabilities that the claimant started to walk across the road either immediately before or just as the bus started its turn. Mr Russell again modifies the written skeleton argument in that ground 3 was supported by the submission that when the driver of the bus started his turn he was still six seconds or so away from impact. The six seconds does not feature largely in Mr Russell's submission.
22. However, what Mr Russell does say, in summary, is this. The engineering expert evidence suggests that there was a 2.8 seconds period of time between the moment when Mrs George stepped off the kerb and the moment when she and the bus collided. There was a skid mark which calculates in time as to something of the order of 0.8 seconds, if the speed of the bus was seven to eight miles an hour or something of that order. Taking a reaction time for drivers of between one and two seconds - say, for the sake of the submission, one and a half seconds - the reaction time plus the skid makes 2.3 seconds to the impact; and on this calculation the claimant, the submission is, stepped off the kerb a bare half second before that. Accordingly, it is submitted, the bus driver reacted to the claimant stepping off the kerb more or less immediately she did so.
23. The bus driver's evidence was that he did look in her direction, but that at the moment he was effecting his turn his first consideration was to avoid hitting the northern kerb in the way that I have described. Accordingly, Mr Russell submits that it was a counsel of perfection for the judge to reach the conclusion in those circumstances, with a person unexpectedly stepping off the kerb, that the bus driver should have reacted earlier to avoid the accident. The mathematics, it is suggested, do not add up. In particular, the fact that the bus driver only caught a glimpse of the claimant just before the impact is not to be held against him in circumstances where he was, and rightly was, at that moment paying most of his attention to the northern kerb of Hanover Street.
24. Mr Russell submits that the sentence in the judge's judgment on page 11, that:

"It follows that had Mr Bursey reacted a second or two before he did, this accident would not have occurred, regardless of the fact that the claimant was plainly not looking where she was going",

is not sustainable. He submits, in summary, that the finding of the judge that this bus driver was to blame was wrong because the judge imposed an unreasonable and unrealistic standard on him. He should have found, it is submitted, that Mr Bursey did not fall below the standard of care.

25. As I wrote when I refused this application on paper (and I simply refer to it because it points out the obvious), the questions that are brought to the court on this application are pure findings of fact. Everybody who is familiar with appeal courts and cases of this kind knows that challenging pure findings of fact in a case such as this is an extremely difficult thing to do, the reason being that findings of fact are essentially matters for the first instance judge, who has seen and heard all the evidence and who has been able to judge that evidence as it is given at first hand. In the present case it seems to me that, although a powerful argument was made by Mr Howard, as the judge acknowledged, and a powerful argument is made by Mr Russell on the basis of calculations and evidence, my view is that, if one lifts one's eyes slightly above those statistics, if I may put it that way, one finds that there was quite sufficient material on which the judge was able properly to reach the conclusion he did that Mr Bursey was negligent.
26. It seems to me that there is no real prospect of the Court of Appeal reversing that finding. I say that for the very straightforward reason that, as the judge said, this claimant was there to be seen and could be seen walking off the pavement and into the road, and she had got half-way across or thereabouts by the time the impact occurred. This bus was turning from a main road into a less main road and it was, in my judgment, as in the judge's, incumbent on a reasonably competence driver to be looking in all directions. It was, it seems to me, quite open to the judge on the evidence (particularly the evidence of Mr Morris and Mrs Hayes) to reach the conclusion as to negligence that he did.
27. That is not an end of the matter, because Mr Russell submits that, for the reasons advanced by Mr Howard in writing, the apportionment of 60 per cent to the driver and 40 per cent to Mrs George is untenable. It really has to be put on the basis that it is untenable because otherwise, for the reasons which I have given, the Court of Appeal is not going to intervene. The submission is that the balance of all this weighed heavily against the claimant. Until she stepped off the pavement there was no danger. Before stepping off she should have ensured her own safety and, on the evidence, it is suggested that she failed to do so. Having stepped off, it was her responsibility to be continually on the look-out for vehicles, and she must have failed to do so. She chose to cross some way into Hanover Street rather than at the designated crossing where there would have been more visibility. If she had paid attention, as she should have done, and seen the bus, she would have appreciated the difficulty of the manoeuvre it was performing and steered well clear of its probable path. She made no attempt to avoid the collision. The driver was driving carefully. He had a difficult manoeuvre to perform and had much to observe, especially the potential hazard created by the tightness of the turn and avoiding the northern pavement of Hanover Street. He did see the claimant before impact. He did react and he braked properly, nearly avoiding the impact.
28. Here again I am not persuaded that there is any real prospect of the Court of Appeal intervening so as to reapportion the responsibility for this accident. True it is that there was some evidence that at the moment of impact the claimant was unaware of the bus. But the judge reached the conclusion that she was in part to blame for this accident and it was, in my judgment, pre-eminently a matter for him to determine what that apportionment was. He reached a conclusion that probably the claimant did look to her right in the way that Mr Morris described. Indeed, he accepted the evidence that she was looking for traffic, but that she did not in all probability appreciate, having looked to her right, that the bus was turning left, or was about to turn left, and she may have imagined, because the bus was positioned rather to the right-hand side of the carriageway in Regent Street, that it was in fact going straight on.
29. In those circumstances, it seems to me that the Court of Appeal is not going to interfere with this apportionment. I do not think there is any real prospect of the applicants succeeding in that event and, notwithstanding Mr Russell's powerful submissions, in my judgment this application should be dismissed.
Order: application for permission to appeal dismissed.