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 BIRMINGHAM COUNTY COURT
(Mr Recorder Challinor)

		Royal Courts of Justice Strand London WC2 Tuesday 17th July, 2001

1. LORD JUSTICE SEDLEY: This is an appeal (brought by permission granted by Otton LJ) and a cross-appeal (brought by permission of Buxton LJ) from the decision of Mr Recorder Challinor sitting at Birmingham County Court on 8th August 2000. The issue before the Recorder was liability, and liability only, in relation to a road accident which had resulted in the claimant, Mr Watson, suffering serious injuries.
2. The accident occurred on 17th April 1997 at a road junction beside the Gate Public House in Oldbury Road, Whiteheath. The carriageway at that point is divided into three lanes on the side on which the pub stands, divided by a refuge from a two-lane carriageway in the other direction. On the day in question the nearside lane – that is the lane nearest to the pub – was blocked by roadworks and sealed off by a large timber baulk surmounted by a piece of wire fencing. These ended roughly level with the white stop line at the pelican crossing which governed the road at that point. The pelican crossing was laid out, as pelican crossings ordinarily are, with a heavy white stop line set some feet back from the studs between which pedestrians are expected to cross.
3. The phasing of the pelican crossing lights was described in the joint expert's report which was before the Recorder. At the end of the pedestrian crossing phase the "green man" light goes out. It is then, after a pause, replaced by the "red man". Then an amber light comes on to join the red light facing the traffic, and thereafter the lights go green. The entire process takes eight seconds.
4. The claimant had been in the Gate Public House, but on the Recorder's finding he had not drunk a great deal there. His conduct, however, as described by witnesses and accepted by the Recorder, was extremely erratic. The traffic was halted at red. The claimant, without checking whether the pedestrian light was at green, but checking only that the traffic light itself was still at red, crossed the blocked nearside lane between the studs and the stop line – that is to say in a position unduly close to the stationary vehicles – and walked in that position right in front of the large articulated lorry with a sheer bonnet which the defendant was driving.
5. The defendant had duly checked his mirrors. When the lights went amber and then green in his favour, he put his vehicle into gear and set off entirely unaware that right in front of the lorry, and so close that he could not see him, was the claimant. The claimant in consequence was run down.
6. The claimant sought damages from the defendant on the ground that it was by the defendant's negligence that he had been injured. The defendant denied liability and claimed in the alternative that by far the greater part of the blame rested upon the claimant.
7. The Recorder concluded that that there was fault on the defendant's part in not having looked with sufficient care to his left where, had he looked, he would have seen the claimant setting off on his unwise course. But he held the claimant 50 per cent to blame for his own injuries.
8. On this appeal Mr Corless, for the defendant, contests the finding of liability. If he fails on that, he contests the apportionment of only as little as 50 per cent of the blame to the claimant. Mr Rochford, for the claimant, seeks to support the finding of liability and to reduce the finding of contributory negligence to a figure he suggests should be no more than 25 per cent.
9. The Recorder's judgment is a model of its kind and makes it much easier than it would otherwise have been to turn directly to the facts as found. Having considered the evidence of the parties and of at least two good eyewitnesses who had been driving in the opposite direction, as well as that of the joint expert Mr Griffiths, the Recorder made these findings of fact.
10. First, that the claimant was not drunk, although he had been drinking.
11. Secondly, that the defendant was properly stationed at or behind the white stop line and in a position from which, had the claimant crossed between the studs as he should have done, he would have been seen and would not have been hurt.
12. Third, that the claimant had come over the dwarf wall by the pub car park and had crossed the pavement and gone into the road at a leisurely pace, having checked that the light facing the vehicles was still red, but having failed to see that the pedestrian light was itself red against him.
13. Fourth, the Recorder found that the claimant set off in line with the end of the temporary fencing which I have described, and therefore between the stop line and the first set of studs, veering thereafter not away from but towards the front of the lorry.
14. Fifth, the Recorder found that it was between three and a half and four seconds that it took the claimant to get from the dwarf wall to the front of the lorry. I interpose that the expert's evidence was that at a leisurely pace it was just over three seconds from the kerb to the centre of the lane which the lorry was in.
15. Sixth, the Recorder found that when the lorry revved its engine to set off, the claimant was directly in front of it and, in effect, trapped.
16. Seventh, the Recorder found that at no time was the claimant in fact seen by the defendant.
17. The lorry, as will have been apparent, was in the middle of the three lanes ordinarily functioning at this junction but, because of the roadworks, the nearside lane as the junction was then configured.
18. The Recorder turned then to the key question: in these circumstances was the defendant, Mr Skuse, negligent? He asked himself, rightly, what is to be expected of a prudent, careful and reasonable driver in the circumstances which the Recorder found to have obtained.
19. Among the data which the Recorder had was geometrical and photographic evidence of the configuration of the lorry and the cab. This demonstrated that a pedestrian of average or somewhat above average height if close enough to the front of the cab would not be visible to the driver. It also demonstrated that if the driver looked forward and to his left, although his field of vision would be largely taken up with the nearside wing mirrors and the A-post, as it is called, which occupies the corner of the cab, it was nevertheless perfectly possible to see beyond these to the roadway and pedestrians on it. Indeed, the final paragraph of the expert's report, although phrased in the unfortunately judgmental way in which these reports too often are, did establish that, at least in the expert's opinion, it was feasible for a pedestrian taking the line which the Recorder found the claimant to have taken to be seen by the driver of the cab as the lorry stood waiting at the lights. This was reflected in the Recorder's findings of which I will read the key passage:

"I have to take account of what his lookout must therefore include, and I find that as a reasonable driver his lookout must include not only looking ahead of him, but looking to his side as well, in order to take fully into account those pedestrians who may well find themselves near to this pelican crossing, but see fit to cross it not strictly in accordance with the lights which control it, or in a line immediately and directly between the metal studs.

I find that if Mr Skuse had looked to his left, and I look at the photographs taken by Mr Griffiths, which shows the view from the cab, together with the evidence of Mr Skuse about his view, that had he looked to his left he would have had ample opportunity to see Mr Watson embark upon his route across the road. Admittedly he would, after a while, and that is to say a few seconds, have lost sight of Mr Watson, but would then of course have been aware that he was in front of his vehicle in the area of the blind spot.

I find that Mr Skuse failed to observe the presence of Mr Watson, because as the witnesses indicated he was intent on looking ahead. Both witnesses ... were easily able to see Mr Watson as he emerged from the car park. They watched him for some time crossing the wall, and were able to describe in detail how this drama unfolded. Admittedly they were not hampered by a blind spot, I accept, but when Mr Skuse looks to his left, to the area of the wall and the pavement and the first carriageway which was screened, neither was he hampered by a blind spot. His blind spot I find was very much closer to the vehicle.

Accordingly I am satisfied that he failed to keep an adequate lookout to his left and that therefore the claimant succeeds in establishing that Mr Skuse was indeed negligent."

20. Mr Corless has submitted to us that, on the evidence, the defendant did look left, did not see the claimant, had no reason to have seen the claimant, and even if he had seen him would never have imagined or been expected to imagine that the claimant was not going to stop in the blocked nearside lane, but instead was going to walk close under the lee of the lorry's cab with the pedestrian lights red against him.
21. The problem with these submissions is that while they were without doubt an attractive way of putting the case to the Recorder, they did not succeed in persuading the Recorder that the defendant was exonerated of liability. In particular, the first of Mr Corless' propositions, that Mr Skuse did look to his left, is correct, but only in the context of Mr Skuse checking his mirrors and looking around him before he set his vehicle in motion.
22. In the end, it seems to me that the Recorder's finding on liability ought not to be disturbed. Axiomatically, the driver of the motor vehicle, never more than when it is configured as this one was so that a person close enough to it will be invisible to the driver, has got to exercise a very high degree of vigilance, Equally, it is well-established that the duty is owed not only to prudent and alert road users, but to the infirm, the young and (albeit within certain limits) the foolish. On any view - and I shall have to return to this in a moment in relation to contributory negligence - the claimant was in the last of these categories. It does not matter whether it was by reason of drink or for some other reason that he behaved as foolishly as he did.
23. There are, in other words, people who look at the traffic light and not the pedestrian light and judge their movements accordingly; who walk not between the studs but between the studs and the stop-line; and who even walk right under the lee of an articulated lorry which is waiting to move off, in a position where the pedestrian himself must realise, if he bothers to think about it, that the driver probably cannot see him.
24. The Recorder formed the view that it was for the defendant to anticipate such possibilities. More specifically, however, his critique was of the defendant for looking only ahead and not to his left in the moments before he prepared to move off and set his vehicle in gear. Had he looked, on the Recorder's findings he would probably have seen the claimant setting off into the road with, as Mr Rochford rightly says, at least the risk that he would do something stupid, such as continue straight ahead into the lorry's blind spot.
25. For my part, therefore, although I do not say that in the Recorder's position I would necessarily have reached the same conclusion, I consider that his conclusion was one carefully arrived at on evidence which he had seen and heard, applying the correct principles of law, and one which therefore, in my judgment, this court ought not to disturb.
26. It leaves, however, a very large question in indeed about the degree of blame which ought to rest upon the claimant. Mr Rochford, as I say, contends that 50 per cent is too high because of the magnitude of the burden that rests upon the driver of a huge vehicle like this and the vulnerability of pedestrians, including as they do the foolish and the unwise. The defendant, for his part, through Mr Corless, says that 50 per cent comes nowhere near reflecting the magnitude and causative potency of the claimant's own folly.
27. In this regard I am in no doubt that the defendant is right. Taking his error to have been a failure to look to his left with sufficient care while he was waiting for the lights to change in his favour, it remains plainly the case, on the Recorder's findings, that the claimant was the principal author of his own misfortune. It was he who chose to cross from a point at which he might not be seen, even though in that regard the Recorder's finding is that had the defendant looked he would have seen the claimant. It was the claimant who did this at a moment when he could and should have seen that the red pedestrian light was against him, so that the lights were about to change in the defendant's favour. It was he who then veered towards rather than away from the lorry, and indeed, as the Recorder found, attempted to strike the front of the lorry in order to draw the driver's attention to his presence. And it was he who, when cross-examined, said this:

"A. I didn't stop. I glanced at the lights and they were still on red. That is why I carried on.

Q. You say you can't say what the pelican lights showed, whether it was a red man or a green man?

A. No. I didn't look at the pelican lights.

Q. Why was that?

A. Well, at 48, 49 years of age I never thought I would have to start looking at pelican lights."

28. In my view an equal apportionment of liability in such circumstances does not reflect the relative culpability and the causative potency of the claimant's own acts.
29. In my view, a proper apportionment of liability in this case would be 80 per cent to the claimant and 20 per cent to the defendant. To that extent, I would allow this appeal.
30. LADY JUSTICE ARDEN: I agree.
31. I gratefully adopt Sedley LJ's description of this unfortunate accident, and I agree with all that he has said. Like Sedley LJ I take the view that the Recorder's findings of fact were exemplary. I just add one or two observations of my own.
32. Having examined the photographs in evidence at the trial and considered with care both counsel's submissions, I consider that the judge was entitled to conclude that Mr Skuse failed to keep an adequate lookout to his left. However, I have concern about the judge's decision on contributory negligence. When it comes to his decision on contributory negligence, he took the view that the driver was not hampered by the blind spot in front of the vehicle from seeing the claimant to the left. In favour of Mr Skuse, he took into account the fact that the claimant was crossing against the red pelican light. Indeed, as my Lord has explained, the claimant had what appears to be a cavalier attitude to pelican lights, as opposed to traffic lights, and the judge found that he was crossing very close to the lorry. In his fourth finding of fact the Recorder found that the claimant must have started somewhere between the white line and the first set of studs which mark the area of the pelican crossing, but then crossed the line and veered somewhat towards the front of the lorry and into Mr Skuse's blind spot.
33. As I see it, the judge however gave no weight to the fact that the claimant additionally ought to have known that the driver could not see him if he walked as close as he did to the lorry. The claimant is an adult. I have seen photographs of the front of the lorry. We are told at the bottom edge of the window is six foot three inches from the ground, which is above the level of the claimant whom we are told is about five foot eight inches. It must have been self-evident to the claimant that the driver could not see him when he was immediately in front of the lorry. He took what I regret was a foolish gamble. In my judgment this was a vital fact to which the judge did not give weight, and in the circumstances I agree with the order my Lord proposes.
ORDER: Appeal allowed to the extent that apportionment of liability is varied to 80 per cent to the claimant and 20 per cent to the defendant; no order for costs; costs order below not disturbed. (Order not part of approved judgment)