England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COUNTY COURT
(HIS HONOUR JUDGE COCKROFT)

		Royal Courts of Justice The Strand London Tuesday 13 February 2001

Tuesday 13 February 2001

1. LADY JUSTICE HALE: On 12 May 1996, the claimant Nathan Patterson was struck and injured by a car driven by a Mr Harris, an employee of the defendant company. On 24 February 2000, His Honour Judge Cockroft, in the Leeds County Court but sitting in York, held that Mr Harris had been negligent in failing to brake, but he also held that Mr Harris's negligence did not cause the accident. Accordingly, he dismissed the claim. The claimant now appeals with the leave of Lord Justice Tuckey who thought it arguable that the judge's conclusion that the negligence he found was not causative was wrong.
2. The facts were these. On the evening of Sunday 12 May 1996 the claimant, who was then aged 16, had gone to a party in Boston Spa with four friends, Andrew Bones, Ben Robinson, Mark Crossland and Kevin Thackray. They had left quite early and caught a No 760 bus in Boston Spa en route from Wetherby to Leeds. They got off the bus at a bus stop in Coal Road, Leeds. By then it was about 10.00pm. It was dark, but fine and dry. Coal Road is an ordinary two-lane highway with street lights and a speed limit of 40 mph. The boys walked to the back of the bus intending to cross the road and walk to where they could catch other buses to take them to their homes. There was a dispute about how far they had walked behind the bus before setting off across the road, and also about how many of them had left the kerb before the accident happened. On their accounts, Nathan and Andrew were first into the road; Ben was behind them; and Kevin and Mark were the last off the bus because the bus driver had asked Kevin to pick up a drinks can which had been rolling around on the floor of the bus.Once they were off the bus, the bus driver, Mr Fletcher, began to move off. The judge understandably referred to Mr Fletcher as a witness to be cherished. He was entirely independent and, furthermore, had good reason to remember what he had seen because he thought that he had witnessed a fatal accident. Mr Fletcher's evidence was that he heard a "braying" or banging on the rear of the bus. He thought that the boys were in effect saying "goodbye" to their friends who were still on the bus. The boys either denied or could not recall this, but another passenger, Mr Johnstone, confirmed that he had heard banging. The judge therefore accepted the evidence that the banging had taken place. The bus driver's evidence was that he had at least slowed down in his acceleration away from the bus stop as a result and that he had looked again in his offside mirror, which the judge described as "TV sized".
3. Mr Fletcher saw four boys strung out in a diagonal line, crossing the road behind the bus. His evidence was that Nathan was the first in the line, that is the furthest out into the road and the furthest away from him. Mr Fletcher's evidence was not consistent in every respect. His witness statement dated 21 February 1997 says that the boys were walking across the road, but at the outset of his evidence in chief, he corrected this to say that it was more of a dash. At no point did he repeat what he had said in his first statement to the police that Nathan had rushed out after the other boys had stepped into the road. The judge appears to have accepted Mr Fletcher's evidence in the witness box in preference to any other account that he had given. His evidence was that at first he thought that the on-coming car driven by Mr Harris was going to hit them all. But the first boy stopped and made a gesture, which was demonstrated to us as the waving of both of his arms, as a warning to the other boys that something was coming and that they should stop.Because the judge accepted Mr Fletcher's evidence about the braying on the back of the bus, he concluded that the boys had set off across the road from close behind the rear of the bus as it moved off, rather than as they had said from further back by some railings.
4. Mr Harris, the employee of the defendant, was travelling in the opposite direction, driving out of Leeds. His evidence was that when he was 20 yards in front of the bus, he saw two or three young lads who appeared to jog out from the rear of the bus. He took his foot off the accelerator to cover the brake. The lads stopped. He could see that they had seen him. He therefore carried on. In his witness statement he said that he saw a flash from the corner of his eye. The windscreen exploded and he realised that someone must have run out from behind the bus into the path of his vehicle. However, immediately after the accident he told independent witnesses that at first he thought that he had hit a dog. This strongly suggests that he did not see Nathan at all before hitting him.
5. He hit Nathan in the centre of his car. The impact damage was to the front bumper. The nearside of the windscreen was shattered as Nathan was tipped up over the bonnet into the windscreen and then thrown some 30 metres down the road. Mr Harris did not stop until 20 metres after that. It was clear that he had not braked at all before the impact. He accepted this. No one heard any sounds of braking until afterwards. There were no marks on the road from which the police examiner could reconstruct the speed or the exact point of the impact.
6. The judge concluded that it was not enough for Mr Harris, having seen the boys in the road at the back of the bus, simply to take his foot off the accelerator. He said:

"He could not have known in what state those lads were. It was comparatively early, 10 o'clock at night, but he was not entitled to make any assumptions as to their state of sobriety, once having seen them. He says he did. It was not sufficient, in my judgment, for him then to assume either that the boys who, it appeared, had engaged in eye contact with him were not going to step out into his path, or to assume that there was nobody else unsighted at that time who might have walked out where others feared to tread from behind the bus. He was not entitled to make those sorts of assumptions."

7. The judge therefore found that Mr Harris had indeed been negligent. However, he then went on to ask what difference it would have made if Mr Harris had braked. He said:

"It is right to say that 35mph equates to just over 50 feet per second. This bus was 40 feet long. Again, I think over-elaborating, and doing the defendant's case little justice, Mr Harris claims that he would have been able to avoid the pedestrian in the road. Well, since he did not see any pedestrians until he was already overlapping with the bus, he had less, by definition, than 40 feet in which to travel before reaching the end of the bus. If he had applied emergency braking he would still have gone beyond the point where the claimant ran into his path. If he had braked down only to 20 or 25mph, it seems to me it could have made no conceivable difference in the circumstances of this case."

8. The judge therefore concluded that the negligence was not causative in any way of the accident and that therefore the claim failed. He went on to say that had he concluded that the negligence of the oncoming driver was or had been causative of the accident, he would have apportioned blame as to two-thirds upon the claimant and one-third upon the driver.
9. I turn to the arguments in the appeal. In the circumstances as I have related them it is not surprising that Mr Cooksley argues on behalf of the claimant that the judge's findings were illogical and unsustainable. Mr Harris himself said that had Nathan been where Mr Fletcher said he was, he would have been able to stop. Even slowing down would have given Nathan time to pass an extra metre or so in front of the car. Mr Harris's own evidence of the distances supports that argument. He was 20 yards (60 feet) from the front of the bus when he first saw the boys. The length of the bus was some 40 feet. The boys themselves were a little way behind the bus, which had already moved off. According to Mr Fletcher, they were a bus length behind (another 40 feet), in a diagonal line, although it is not known how much space there was between each of the boys. That is much more than the 40 feet to which the judge referred. It gave enough time for Mr Harris's appreciation to be right: had Nathan been where Mr Fletcher said he was, he could have stopped in time. It certainly lends force to the argument that the injuries would have been quite different. Although Mr Harrison on behalf of the defendant cannot concede that they would have been less, there is a considerable difference between being struck head-on by a car travelling at 35mph and being struck in a slightly different place by a car travelling at 25mph. In any event there might have been time, given that Nathan was hit by the middle of the car, for him to have got out of the way.
10. In those circumstances, despite Mr Harrison's valiant attempts to defend the judgment, it seems to me that the judge's conclusion is unsustainable. He accepted Mr Fletcher's evidence given at the trial. He gave every indication of accepting Mr Harris's evidence. Their combined effect is that the judge left out of account two parts of the distance when he was making his calculations. The negligence must, therefore, have contributed to the accident and to Nathan's injuries.
11. The judge's own apportionment of liability for those injuries was one-third to the defendant and two-third to the claimant. Mr Cooksley accepts that the bracket is somewhere between half and half and two-thirds to the claimant. Bearing in mind that there are two elements in assessing contributory negligence, the comparative causative potency of the parties' actions and their comparative blameworthiness, in my judgment, the judge was entirely right in apportioning it as he did. The blameworthiness of Nathan in the circumstances was, in my view, somewhat greater than that of Mr Harris.
12. Accordingly, I would allow the appeal, set aside the judge's order, and I would substitute a finding that there was liability on the part of the defendant, but that the claimant was two-thirds to blame.
13. LADY JUSTICE ARDEN: I agree with the order that Hale LJ has proposed for the reasons that she has given.
ORDER: (Not part of judgment) Appeal allowed with costs; costs of the liability hearing to be reserved to the judge determining quantum; detailed public funding assessment of the claimant's costs.