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 HIGH COURT
CANTERBURY COUNTY COURT
(HIS HONOUR JUDGE POULTON)

		Royal Courts of Justice Strand London, WC2 Monday, 21 October 2002

Monday, 21 October 2002

1. LORD JUSTICE CLARKE: Lord Justice Jonathan Parker will deliver the first judgment.
2. LORD JUSTICE JONATHAN PARKER: This is an appeal by Miss Heidi Goddard and Miss Susan Walker (the claimants in the consolidated action) against an order made by His Honour Judge Poulton in the Canterbury County Court on 13 June 2002, whereby he entered judgment for the defendant (the respondent on this appeal), Mr David Greenwood. The judge refused permission to appeal but permission was granted by Clarke LJ on the papers on 5 August.
3. In the action the appellants claim damages against the respondent for injuries arising out of a road traffic accident which took place on 18 November 1999. The issue before the judge was that of liability only. There is no appeal against the findings of fact made by the judge. The relevant facts as found by the judge were as follows.
4. At about 9.30 am on 18 November 1999 the appellants were jogging in an easterly direction along the pavement on the south side of Town Wall Road in Dover. Town Wall Road is part of the A20. It runs more or less east to west, and it is a very busy road. There is a 40mph speed limit at the relevant point. The accident occurred at the junction of Town Wall Road and Woolcounter Street, which is a junction regulated by traffic lights. The junction incorporates a pedestrian crossing on its eastern side; the pedestrian crossing is also regulated by the traffic lights. There are illuminated signs for the guidance of pedestrians which light up on the pressing of a button. At times when the traffic lights are red and it is safe for pedestrians to cross, the light, when operated, will show a green man. At other times a red man will show. At no stage does a flashing sign appear; nor do the lights incorporate a flashing amber light. The sequence of the traffic light is the usual sequence: red, red and amber, green, amber and back to red.
5. The appellants wished to use the pedestrian crossing in order to cross the road to reach the leisure centre which is situated on the opposite side. As they approached the pedestrian crossing neither pressed the button to bring up the illuminated sign. There were no other pedestrians around them nor were there any pedestrians on the central reservation. To reach the central reservation the appellants had to cross three lanes of traffic, the outside lane being provided for those drivers who wished to turn right into Woolcounter Street. The appellants' evidence was that when they stepped off the kerb the traffic lights were still at red. However, the judge held that by that time the lights had turned. The judge commented in paragraph 12 of his judgment that they may have paused longer than they remembered.
6. The respondent, meanwhile, was driving in his Suzuki Vitara in a westerly direction along Town Hall Road towards the junction. He was in the nearside lane. In front of him, also in the nearside lane, was a large lorry, or juggernaut, some 54 feet long with enclosed sides. The lorry was stationary at the junction with the pedestrian crossing immediately in front of it. At that stage the respondent noted that the traffic lights were red. He reduced his speed to about 25 mph as he approached the lorry and manoeuvred into the middle lane. He was at this stage in third gear. His evidence, which the judge accepted, was that "as he came round the back of the lorry" he saw that the lights had turned to green. He maintained his speed of 25 mph. As he drew level with the lorry, which was still stationary, he heard the sound of the lorry's horn. He looked to his left and saw the appellants jogging across the pedestrian crossing. He stopped as quickly as he could but Miss Walker was struck by the front of his car and Miss Goddard ran into the side of it. Both claim to have suffered substantial injuries as a result.
7. As I have indicated, the appellants' primary case was that the traffic lights were still at red when the respondent crossed it; but the judge rejected that case on the facts. Their alternative case, however, is that even if, contrary to their recollection, the traffic lights were at green by the time the respondent crossed them (as the judge found that they were) the respondent ought not to have maintained his speed and overtaken the lorry; rather, he should either have stopped, or at least slowed down to the point where he could be satisfied that there were no pedestrians on the crossing (part of which was obscured by the lorry) before he proceeded to cross it.
8. The judge rejected that alternative case also. He said this (paragraph 17 of his judgment):

"It is said that he could not see whether anyone was on the crossing and therefore he should have stopped or slowed right down to I suppose something like walking pace. In my judgment he was under no obligation to do so. The lights had changed, he was going on green, he was travelling forward in a proper manner and I do not see that he was in breach of his duty. Unfortunately, as I have found, the claimants went over when it was not safe to do so, and although I accept that there is some duty on all drivers to anticipate that people may use the highway unsafely, I do not think it goes as far as saying that he should have come to a stop at this point."

9. The judge went on to say this (paragraph 18):

"If I am wrong about that, then of course the question of contributory negligence will arise, and one has to say straight away that if someone does start off or cross with the lights against you that is extremely careless, and if you do it because the vehicle in front of you has not moved and appears to have seen you so you think it is safe, you have an absolute obligation, once you get to the edge of that vehicle, to stop and look and make certain as you carry on across the highway that it remains safe, and that plainly they did not do. The lorry driver actually realised what was going to happen because he saw the defendant in his mirror and hooted, but both ladies say they did not take any notice of the hoots because they get lots of hoots and they did not realise this was a warning hoot. Whether they heard the hoot or not, if they are going to cross in front of a lorry then they must, as they get to the edge of that front, look and see that it is safe to continue, and of course if they had done that they would have seen it was not. On my finding that there was no negligence on the part of this defendant of course contributory negligence does not arise, but if I had been persuaded by the argument that really he should have slowed right down virtually to a stop and therefore was liable, I would have placed the contributory negligence at 80%. As I say, that does not arise and I am afraid this claim must be dismissed."

10. In support of the appeal Miss Kathleen Anderson, for the appellants, submits that on his findings the judge ought to have reached the conclusion that the respondent was equally to blame for the accident. She submits that the presence of the lorry and the fact that it remained stationary when, as found by the judge, the lights had turned to green, coupled with the fact that they had only just turned to green, ought to have alerted the respondent to the possibility that a pedestrian might be in the process of crossing in front of the lorry. She submits that as the respondent could not see either the edge of the kerb or the crossing itself in front of the lorry he should not have allowed the front of his vehicle to pass the front of the lorry. In support of her submissions she prays in aid a number of provisions of the Highway Code and of the Traffic Signs Regulations and General Directions 1994. She has also referred us to authority.
11. Mr Jonathan Woods, for the respondent, submits that the judge committed no error of principle and that he took into account all relevant considerations. He submits that the judge was fully entitled to conclude that the respondent had not been guilty of any lack of reasonable care in maintaining his speed across the pedestrian crossing. He invites us to consider the example of a lorry waiting in the outside lane to turn right and asks, rhetorically, whether it would be practical to suppose that on a busy thoroughfare such as this traffic should slow down to a walking pace in order to ensure that no pedestrian was crossing in front of the stationary lorry. Mr Woods submits that little assistance is to be gained from the provisions of the Highway Code or of the Regulations to which Miss Anderson has referred us. Alternatively, should we conclude that the judge ought to have found that the respondent was in some degree liable for the consequences of the accident, he submits that the judge was plainly right to limit his liability to 20 per cent, on the basis that the appellants' contributory negligence accounted for the remaining 80 per cent.
12. In my judgment, on the findings of fact which he made, it was not open to the judge to find that the respondent was under no liability at all for the injuries caused by the accident. It is common ground that when he passed the lorry and began to cross the pedestrian crossing his view of the crossing was to some material extent obscured by the lorry. The fact that the lights had by that time turned to green does not mean, in my judgment, that he was absolved from using reasonable care in proceeding across the pedestrian crossing, particularly in circumstances where his view of it was partly obscured.
13. In my judgment a reasonably careful driver in the situation in which Mr Greenwood was placed would have anticipated that there might be a pedestrian on the crossing. The circumstances of the instant case are, in my judgment, not on all fours with the example which Mr Woods took. First, the lights in the instant case had only just changed; second, the lorry was in the nearside lane and stationary. In the particular circumstances of this case, therefore, I consider that the respondent ought to be held to have breached the duty of driving with reasonable care.
14. On the other hand I entirely agree with the judge that the contributory negligence of the appellants was of a very high order. In all the circumstances, as found by the judge, his conclusion that the contributory negligence of the appellants amounted to 80 per cent cannot, in my judgment, be faulted. In any event there is no basis upon which this court would interfere with that conclusion even if it did not agree with it. For my part I would respectfully agree with the judge's assessment of the appellant's contributory negligence.
15. Stressing, therefore, that no general rule is laid down in this case and that the breach of the duty to drive with reasonable care has been made out on the particular facts of this case, I would allow this appeal to the extent of holding the respondent liable for 20 per cent of the consequences of the accident.
16. LORD JUSTICE CLARKE: I agree.
(Appeal allowed; judgment will be given in favour of the appellants against the respondent for 20 per cent of the recoverable damages; the defendant do pay the claimants' costs up until 6 June 2002; the claimants do pay the defendant's costs in the court below from 6th June 2002; the defendant do pay the successful claimants' costs of the appeal).