England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM LUTON COUNTY COURT
(His Honour Judge Simmons)

		The Royal Courts of Justice The Strand London Tuesday 9 July 2002

Tuesday 9 July 2002

1. LORD JUSTICE SIMON BROWN: This is the defendant's appeal in a running-down action, brought with the permission of Pill LJ against the order of Judge Simmons made in the Luton County Court on 28 February 2002, giving judgment wholly in the claimant's favour on the issue of liability, a split trial having previously been directed.
2. The claim arose out of an accident on the A507 bypass at Arlesey in Bedfordshire, shortly before 9.00 pm on 31 March 1998. The appellant was driving a Vauxhall Cavalier eastwards. The respondent was a pedestrian crossing the road on foot from south to north, that is, from the appellant's offside to his nearside. She had reached almost to the north side of the road before she was struck by the front nearside of the Cavalier. On impact she was thrown up over the bonnet into the windscreen and suffered, alas, quite serious injuries.
3. The accident happened approximately where the A507 crosses over a railway, near the railway flyover, as that section of road is apparently known. At this point the A507 consists of a single carriageway in each direction and (according to the plan which was used at the trial) it narrows in overall width from 15 yards where it crosses the railway, down to 12 yards in the area of impact. The impact occurred just east of the flyover, where on each side of the A507 there is a bus lay-by and stop separated from the respective carriageways by broken white lines extending over a distance of some 45 yards. The road is subject to the 60mph national speed limit. As to the lighting, the judge found that although the road is not lit for much of its length in the vicinity of the accident, there is relatively good street lighting at the point where the accident itself occurred.
4. On the evening of the accident the respondent was on her way to work as a health care assistant at the Lister Hospital in Stevenage. She had been thus employed for just three weeks and this was to be her second night on night duty. To get to work that evening, it had been arranged that her mother would drop her by car at the bus stop on the south side of the A507 and that a work colleague (then called Miss Potts, now Mrs Holland) would pick her up from the bus stop on the north side of the road and drive her to the hospital.
5. The respondent and her mother arrived at about 8.45 pm, Mrs Holland some ten minutes later at about 8.55 pm. At that stage the respondent had of course to cross the road between the two bus stops, which were opposite each other at a distance, as already stated, of some 12 yards between the broken lines separating each bus lay-by from the carriageway. The respondent waited for two vehicles to pass from her right; that is, two westbound vehicles. There being then no vehicles approaching from either direction, she began to cross the road at what the judge found had been a brisk pace.
6. Her mother was still standing by her car in the bus lane on the south side. When her daughter was part-way across the road, mother saw the appellant's dipped headlights just appearing over the brow of the railway flyover to her left. The visibility in that direction appears to have been some 120 yards from the bus stop, although, as Pill LJ observed when granting permission to appeal, there was unfortunately no express finding as to this. Mother thought that the car was going fast and immediately recognised that her daughter was in peril. She shouted a warning, and that warning was heard by the appellant as well as by the respondent. The appellant was driving with his window open.
7. At about the same time as he heard the shout -- he said just before, mother thought just after -- the appellant slammed on his brakes. In his statement to the police made at the scene of the accident he said that at this time "she was only about 10 metres away". In a written statement, made some six weeks later, he said that he had earlier been aware of two people, implicitly the respondent and her mother, standing in the bus lay-by to his offside; then, because the road describes a very slight left-hand bend at this point, that he had seen the parked car, plainly Mrs Holland's, in the bus lay-by to his nearside. His statement continued:

"18) When I first noticed the car I would say I was only thirty yards or so away from the car. I did not reduce my speed on seeing the car or the pedestrians.

19) I assumed the car was not going to move as there was no indication from it and although I could not see the pedestrians I assumed they were still standing at the bus stop.

20) Almost at the same time of noticing the car on my left I heard someone outside and to my right shout something like 'No'. A split second later I saw a person running across the road in a very dark coat from my right to left. The first time I saw this person was when my headlight picked them out. By this time they were right in the middle of my lane. I cannot recall in which direction the pedestrian was looking.

21) On seeing the pedestrian I immediately braked and began to turn my vehicle into the opposite lane in an attempt to avoid hitting the pedestrian as the opposite lane was clear.

22) Unfortunately, I was unable to avoid the pedestrian who collided with the nearside front of my vehicle before rolling over the top/side and landing in the road."

8. The appellant's reference in paragraph 20 to the respondent wearing "a very dark coat" was in error. She was wearing a nurse's uniform, which is white with some blue stripes and has a white skirt. He was also wrong to describe her as running. The judge found rather that she was moving at a fast walk.
9. It seems to me clear too that the judge must have rejected the appellant's evidence that he had been able to see the respondent and her mother at the bus stop as he approached. That is wholly inconsistent with the judge's clear finding that nothing could be seen approaching from the west as the respondent left the southern bus lay-by. It was inconsistent too with the distances which appear to have been regarded as the basic data for this accident, namely that the limit of visibility from where the appellant appeared over the brow of the bridge to where the respondent was crossing the road was, very roughly, 120 yards, and that she had had to cross some 12 yards to the opposite lay-by. On this basis, as indeed the judge accepted, the appellant's car, assuming that it was travelling at 60mph, would have come into view about four seconds before the accident. Assuming that the respondent was walking at 3mph, in those four seconds she would travel some six yards; if she was walking at 4mph that would be some eight yards.
10. On those facts the judge found, as stated, that the appellant was solely to blame for this accident. He was negligent (a) in driving too fast; (b) in driving on dipped instead of on full beam headlights; and, above all, (c) for having failed to see the respondent until it was much too late, too late to take any effective evasive action.
11. With regard to contributory negligence the judge said this:

"[The Defendant] was moving certainly fast up towards [the Claimant] and was not aware of her presence. She had no chance to move back or do anything in my judgment. If one looks at the distances and speeds she would be travelling at a fast walk to get very nearly to the end of the 12 yards across the road. One can see that there is very little she could have done about it and it was only when her mother shouted the warning when the car was really upon her but too late to do then, that she was really aware of the Defendant, who I do find came out very fast upon her. In those circumstances this collision was the fault of the Defendant and not the Claimant .... I accept her evidence that she did look left and right. I do not therefore accept that she failed to make a proper check. She did not fail to heed the presence of the Defendant's car because it was not there until the last second really. Even at 60 miles an hour the Defendant would have covered 88 feet in one second, which means that he was quite some way down the road by the time she got almost to the edge of the bus layby. She did not fail to wait because he was not approaching when she started and she was not attempting to cross the road too quickly for the reasons that I have given on the facts."

12. Mr Ashford-Thom on the appeal has sought to argue not merely that there should have been some finding of contributory negligence against the respondent, but that this court should go so far as to overthrow the judge's finding of primary liability. That submission I regard as wholly unrealistic, and indeed ill-judged. In the passage I have already quoted from the judgment, the judge not merely described the appellant as coming out "very fast" upon the respondent, but, to my mind, inferentially found that he was travelling at something over the 60mph limit. As for driving on dipped instead of full beam headlights, the judge found -- and was in my view amply entitled to find -- as follows:

"He was driving on dipped headlights. He says in his witness statement that the road was not particularly busy and there were intervals of several minutes between vehicles. It seems to me that a prudent motorist driving along that dark road and even coming to the lit portion ought to have his full headlights on unless he is blinding other motorists coming the other way, and there is no evidence about that. Mr Trinder, as I say, says in his statement that there were not such motorists. In the witness box he had difficulty remembering any. But in my judgment he ought to have had his full beam headlights on in so far as it was safe to do that. Had he done that then I have no doubt he would have seen the Claimant somewhat earlier than he did."

13. Mr Ashford-Thom read to us various extracts from the Highway Code, but for my part I could detect nothing in them which was in any way inconsistent with the judge's finding on that point.
14. As to the appellant's failure to see the respondent until he was virtually upon her, some 10 metres away as he told the police, that seems to me self-evidently negligent on his part. The respondent had after all by that stage been crossing the road for some seconds and had reached to within a yard to so of the bus lay-by on the appellant's nearside.
15. The appeal on contributory negligence, however, is another matter. By the same token that it is perfectly plain that the appellant did not see the respondent until far later than he should have done, so too it seems to me plain that the respondent failed to see the appellant's approaching motorcar as soon as she could, and should, have done. We know that it was approaching for roughly four seconds. As already pointed out, the respondent would walk some six to eight yards in that time. The vehicle must accordingly have come into view before the respondent reached the half-way point. At that point she ought to have been looking to her left to make sure that it was safe for her then to cross the eastbound carriageway. Her mother saw the car: why did not she? And of course if she had, then she would have had an opportunity either to wait for it to go past or to hurry in order to complete her crossing, as in any event on the evidence she so nearly did.
16. In his rejection of the argument on contributory negligence, the judge said, in the passage which I have already quoted:

"She did not fail to heed the presence of the Defendant's car because it was not there until the last second really."

17. With the best will in the world, I simply cannot follow that sentence. The car was visible to the respondent, had she been keeping the lookout she should have been keeping, for some distance before that "last second". Reluctant though this court is to interfere with a trial judge's finding that a person is not guilty of contributory negligence, and conscious though I am of the need not to do so save where the primary facts drive one irresistibly to the conclusion that the judge below has plainly erred, I cannot see how this respondent could properly be acquitted of any responsibility whatever for her accident.
18. Whilst, however, in my judgment the respondent cannot escape a finding of contributory negligence, it by no means follows that she is to be regarded as equally to blame with the appellant. I remind myself of the wise words of Lord Reid in Baker v Willoughby [1970] AC 467 at 490, restoring the trial judge's finding of 25 per cent contributory negligence and reversing the Court of Appeal's decision to increase that to 50 per cent:

"The Court of Appeal recognised that the trial judge's assessment ought not to be varied unless 'some error in the judge's approach is clearly discernible'. But they appear to have thought it impossible to differentiate when both parties had a clear view of each other for 200 yards prior to impact and neither did anything about it. I am unable to agree. There are two elements in an assessment of liability, causation and blameworthiness. I need not consider whether in such circumstances the causative factors must necessarily be equal, because in my view there is not even a presumption to that effect as regards blameworthiness.

A pedestrian has to look to both sides as well as forwards. He is going at perhaps three miles an hour and at that speed he is rarely a danger to anyone else. The motorist has not got to look sideways, though he may have to observe over a wide angle ahead: and if he is going at a considerable speed, he must not relax his observation, for the consequences may be disastrous."

19. The facts of that case, I should note, were very different from those of the present case. What is important to bear in mind, however, is, first, that the pedestrian is having to guard against traffic coming from opposite directions, whereas the motorist is concerned only to look essentially ahead; secondly, that the motorist is driving a potentially lethal piece of machinery, whereas the pedestrian is basically harmless.
20. With these thoughts in mind, I for my part would adjudge the respondent here to have been herself 25 per cent to blame for this accident. I would allow the appeal to that extent.
21. LORD JUSTICE MANCE: I agree.
22. LORD JUSTICE LATHAM: I also agree.
ORDER: Appeal allowed to the extent of reducing the appellant's liability from 100 per cent to 75 per cent. The order below on costs to stand. The appellant to have 50 per cent of his costs of the appeal. (Order not part of approved judgment)