England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EXETER COUNTY COURT
(MR RECORDER GARDNER)

		Royal Courts of Justice Strand London WC2A 2LL Monday 25 June 2001

1. LORD JUSTICE SCHIEMANN: Sir Murray will give the first judgment.
2. SIR MURRAY STUART-SMITH: This is an appeal from a judgment of Mr Recorder Gardner given on 16 August 2000 in the Exeter County Court. The appeal is brought by the defendant who was held solely to blame for an accident in which the claimant was injured. That accident occurred at about 10.30 am on 1 November 1996. The claimant was at that time a student at Seal-Hayne College which is some distance outside Newton Abbott.
3. The claimant was coming from college and walking towards Newton Abbott on the A383 road. She had been walking along the south side of the road, which runs roughly east/west, towards Newton Abbot which was in the easterly direction. In the early part of her journey there was a grass verge on the south side of the road, but at the point of the accident the grass verge disappears and there is virtually no verge at all. There are no pavements on either side of the road. At that point the claimant decided to cross the road to the other side. There is a slightly better verge, or distance between the hedge and the white line, which demarcates the carriageway on that side of the road, although looking at the photographs there is not a significant difference.
4. The defendant was driving her car from Newton Abbott towards Ashburton in a westerly direction. As she came round the bend in the road she saw the claimant in the carriageway, a few feet out from the verge. Initially she did not brake, but she steered to her offside and collided with the claimant roughly in the centre of the road just beyond the double white lines in the direction which the claimant was travelling.
5. The scene is illustrated by a considerable number of photographs and by an agreed plan. The photographs show that at the scene of the accident the motorist in a defendant's position is first confronted with a left-hand bend. There are double white lines on the road. The carriageway then bends round to the right. The road is 6.3-6.4 meters wide in total, each carriageway being about 3.2 meters. It is therefore a fairly narrow road which carries a fairly substantial amount of traffic. It is a difficult road for pedestrians because there are no pavements. The verge gives out on the south side and thereafter there is very little verge on either side.
6. It would appear that claimant decided to cross the road on the basis that if she did so she would then have a better view of traffic coming towards her than if she continued round on the south side of the road which, in the ordinary way, might be the proper side for her to walk because she would be facing the on-coming traffic.
7. There was a good deal of agreed evidence. The expert witnesses on both sides reached agreement on a number of factors. They agreed that the claimant was struck by the front nearside of the car; that the car came to rest with its front about 15 meters from the point of impact; that the defendant's speed as she approached the scene of the accident was about 40 miles per hour; and that at the time the accident itself occurred, by virtue of braking at the last minute, the speed of the impact had been reduced to about 27 miles per hour. The most important fact which was agreed was that when the defendant first gained sight of the claimant if she had reacted promptly and braked heavily, then the Ford Escort could have been brought to a halt shortly before or roughly coincidental to, the point of impact.That is because the visibility of the defendant when she first saw the claimant on the road was approximately 50 meters, or possibly a little more.
8. In his judgment the judge rejected this submission that the defendant was not to blame in any way for this accident. The argument advanced before him and before us was that there was no real criticism of the speed of the defendant, that she steered her vehicle to try and avoid this accident and her reaction was fairly prompt. She had a choice between braking heavily, steering her car, or possibly keeping straight on. She is not to be criticised for adopting the course of seeking to avoid the collision by steering to the offside.
9. The judge said:

"The claimant was travelling at slightly more than this, namely at about 40 miles per hour. The Highway Code at Rule 132 gives the very sensible advice to take extra care and to reduce speed at approaches to bends and to be prepared for pedestrians in the road. Clearly, pedestrians are entitled to use the road, and although it seems that they rarely did so, I consider that the defendant's speed should have been such as to be able to deal with an emergency around the bend by acting reasonably. At the speed she was travelling she did in fact give herself the opportunity to stop within the 50 odd meters had she applied emergency braking. That speed did not give her much time for reflection. Thus, although I do not find her speed per se to have been unsafe it did mean that she had given herself very little time in which to react. She accepts that she did not do an emergency stop and this case involves me in essentially determining whether her failure to do so constitutes negligence, that is, whether she failed to act as a reasonable driver would have done.

I have here to remind myself that this standard should not be artificially heightened by hindsight. I have simply to ask whether she did all that she reasonably could have done to avoid the collision. She stated that she did not know why she did not brake immediately. It is to be noted that she did not believe that she could stop in time and that it is why she swerved rather than braked. She accepted that she only braked lightly reducing her speed, according to the experts, to 27 miles per hour on impact. She said that she assumed that the girl in the road would go back, that is, to the south verge. There was no reason for this assumption and indeed her observations suggested just the opposite. That assumption, she told me, was based on what she herself would have done, although she accepted that everyone does their own thing in that situation. It was put to her that by steering to the offside she was second guessing what the pedestrian was going to do. She then said that in fact she had panicked and thrown the car across the road as her first reaction. That was an entirely honest answer and I believe to be correct.

....

I believe that a reasonable driver seeing a pedestrian in that road and not knowing whether she would stop, stay where she was, continue on or go back, would have taken the obvious course of applying emergency braking to stop before getting to her. I therefore have no hesitation in finding primary liability against the defendant."

10. Counsel for the appellant has advanced the same arguments as he did before the judge. Like the judge, I would reject them. It seems to me that the defendant had a reasonable opportunity of avoiding this accident. She had 50 meters or so in which to brake and stop and, even by slowing down her vehicle to a substantial extent, she would have given the pedestrian a much greater chance of taking the right decision and herself helping to avoid this accident. I do not think the defendant's response was the reaction of a reasonably competent driver in these circumstances. I believe the truth of the matter is, as the judge said, that she panicked and that is not the way a reasonable driver should react. I have no hesitation in upholding the judge's finding on primary liability.
11. The question of contributory negligence is somewhat more difficult. Two arguments were advanced in this court and as far as I know in the court below. The first submission made by the appellant is that the claimant should not have crossed at this particular point. She was crossing at one of the most dangerous points where there was a very restricted view of traffic coming from Newton Abbot, and not a very good view of traffic coming in the opposite direction towards Newton Abbot. Although she had a better view of that, she was putting herself into the position when she crossed the road of going along a very narrow verge with her back to the on-coming traffic and to some extent with a left-hand bend behind her. It was a difficult place to cross. Counsel for the appellant submits that she ought to have crossed further back where there was better visibility in both directions. The judge did not criticise her for crossing at that place. He said:

"However, if one looks again at photograph 89 one sees that drivers going towards Newton Abbott, in other words travelling east, have to negotiate a left-hand bend themselves, and if she had crossed further back she would have been walking with her back to the traffic from which she would be hidden by the bend, which the Highway Code exhorts you not to do, remembering that it is accepted that the hedges were higher at the time of the accident. The claimant was therefore in an impossible position. She needed to be on the verge if at all possible where she was off the narrow roadway. She wanted to be as far away from the bend for traffic travelling east as possible and as visible to traffic travelling west as possible. She could not be all these things. I do not consider that the choice she made was an unreasonable one and did in fact give the traffic, that is in this case the defendant coming from the east, a reasonable opportunity, as I have found, to avoid hitting her."

12. For my part I do not disagree with the judge on that aspect of the case. It seems to me that the choice of where to cross, if one was going to cross this road, was a difficult one and it was as broad and as it was long. If she had crossed further back she had the left-hand bend around which she had to walk with her back to the Newton Abbott bound traffic. If she crossed, as she did, where the verge on the south side petered out, she had some 50 meters or so of visibility of traffic coming from Newton Abbott. I agree with judge that I would not criticise her for crossing where she decided to cross.
13. The second criticism concerns the manner in which the claimant decided to cross. Appreciating, as she must have done, that this was a dangerous place for pedestrians to cross, it seems to me there were two sensible ways of doing it. One was to make sure when she was standing in the gutter or the verge that there was nothing coming in either direction and then to run as fast as she could across the road. The evidence is that she could have crossed the road in two seconds. Alternatively, she could have stepped into the road a yard or so, when she could see nothing was coming, then to look towards Newton Abbott, and if there was something coming either stop or step back onto the verge. She does not appear to have done either of these things. She seems to have seen the defendant's car more or less at the same time as the defendant saw her. She cannot have gone swiftly across the road because she would have got across. She seems to have paused but then decided to run or go forward onto the other side of the road on a collision course with the car. I think that the manner in which she crossed the road was less than the standard one would expect of an adult pedestrian, appreciating that this was a difficult and dangerous manoeuvre which required great care.
14. I have come to the conclusion that she did contribute to this accident. I assess the defendant's responsibility as very much more than the respondent's. I would assess the liability on the defendant at 70 per cent and 30 per cent on the claimant. For those reasons I would allow this appeal in part.
15. LORD JUSTICE SCHIEMANN: I agree both with my Lord's conclusion and with his reasoning.
Order: Appeal allowed in part with costs not to be enforced except against damages and costs by way of set off. Claimant's liability assessed at 30 per cent and Defendant's at 70 per cent. Legal Aid assessment of respondent's costs not to be enforced subject to detailed assessment by costs judge. (Order does not form part of approved Judgment)