England and Wales Court of Appeal (Civil Division) Decisions

“Annona James is now 19 years old. When she was 8, on 7^th March, 1990 she was involved in a most tragic accident on Yarm Road in Stockton within a few yards of her own home. The injuries she sustained will affect her and her family for the rest of her and their lives, and certainly if sympathy was the basis of compensation I would have no hesitation at all in awarding her damages. It is not, and I have got to proceed to analyse this case on the basis of the allegations and to do so with care.”

“... whether the defendant was negligent in failing to see the claimant before he did and, if he was negligent, was that negligence the cause of the accident? When should a reasonable and careful driver have first seen Annona as a potential risk and what would have been the results if he had reacted in time?”

“It seems to me that the first point at which a driver could even potentially have a view unobstructed by traffic of [any pedestrian at or below the road sign area on the pavement ahead] is probably shown in photograph 7 which is at about 50 metres. It is possible that it could be at the earlier photograph 6 which is at 75 metres but it is somewhere in that region. However the fact that it is possible to have an unobstructed view of the pavement area at that stage in good visibility does not by any means mean that the defendant ought to have seen the pedestrian at that distance on this night. Very different considerations would apply.”

“The fact is that he probably could not reasonably see the children walking along the pavement until very much nearer than 50 metres because it was a relatively poor lit area, they were behind the sign which itself would be lit, she was wearing dark clothing, and he was approaching a busy junction which was governed by traffic lights at a busy time of the day. So a reasonable driver in my judgment would not have been expected to necessarily observe or take particular notice of pedestrians in that area until very much closer to the sign than 50 metres and I do not think the fact that the defendant did not see the children walking on the pavement as negligent at all.”

“It is probably one of the worst times for driving for good visibility.”

Common experience tells us all that is so.

“From what has been said by Mr Wade and Mr Allinson [the driver and passenger in the oncoming car] thinking that Annona was a black plastic bag and the defendant seeming to recall a colour blue, that it seems clear that the claimant was wearing darkish clothing, although nobody has actually given me definite evidence as to what colour the clothing was. The fact that neither Mr Wade nor Mr Allinson could identify her as a child is indicative in my mind of the relatively poor lighting or visibility at that particular point where she chose to cross.”

I cannot fault that reasoning.

“I am quite satisfied equally that it was a busy time of night and it is quite likely that there was traffic passing in both directions.”

Again that was a finding it was open to the judge to make.

“Should he have seen them waiting to cross? The first point is that there is no evidence that Annona was ever waiting to cross. The best one can say is that Cheryl and Warwick stopped at the kerb. I consider it, if I have to make a decision on the point, most unlikely that she did. And that it seems to me that probably what happened was as they got to the kerb two of them stopped and Annona walked on into the traffic. One point about this issue is this. Neither of the two others could say why, if the road was clear, as they say it was, why they had stopped at the kerb and had not gone across the road with Annona. Now it seems to me the only satisfactory answer to that question is that they stopped at the kerb because it was the proper thing to do whereas Annona just walked into the road and did not practice any sort of kerb drill at all. Cheryl, holding Warwick’s hand, did the appropriate thing and stopped whereas Annona walked straight out into the road. Certainly there is no evidence to suggest that she did not do that and there is certainly no evidence to suggest she was ever standing at the side of the pavement, nor is there any reliable evidence to show that either Cheryl or Warwick were at the side of the road at a time before Annona was in the road.”

I agree with the judge. The insuperable difficulty for Mr de Wilde is that for good reason or for bad reason there simply was no good evidence as to what this group of three very young children were doing. I would take the appropriate test from the judgment of Buckley L.J. in Moore v Poyner [1975] RTR 127 which he expressed in these terms:-

“... would it have been apparent to a reasonable man, armed with the common-sense and experience of the way that pedestrians, particularly children, are likely to behave in the circumstances such as were known to the defendant to exist in the present case, that there was a possibility of a danger emerging, to avoid which he should slow down or sound his horn, or both?”

The sparse evidence in this case simply does not justify any finding of a possibility of a danger emerging.

“Now it is clear that the defendant did not see Annona until she was virtually in his path. Was that negligent and, if so, could he have avoided the accident? As I have said I think the earliest time any reasonable driver should have seen Annona and reacted was as she left the pavement. That was less than two seconds ... from impact. I do not think that the fact that the defendant failed to do that can be regarded as negligent, given the circumstances of the road, the fact that he was well-lit, there was a lot of other activity upon which to concentrate. It is well recognised in the authorities that there are legitimate and necessary tasks a driver has to perform as part of keeping a proper look out and there is no reason why he should watch one to the exclusion of others. I do not think, given the very short scale of less than two seconds that that sort of lack of observation should be regarded as negligent. I think it is a counsel of perfection to say that he ought to have seen and reacted the very second she stepped off the kerb ...

So it seems to me it would be a counsel of perfection to say that this defendant ought to have seen and reacted the very split second that Annona stepped off the kerb, having decided that she was going to cross without stopping, as I find she did.”

“... it does not in my view follow from the fact that the defendant did not see the boy move across the offside lane that he was not keeping a proper look-out. He could have been glancing to the nearside pavement or in his mirror, either of which would have been perfectly reasonable things for him to do as part of the process of keeping a proper look-out. It would, of course, have been otherwise if he had had any reason to expect the plaintiff to do what he did - for example, had he seen the plaintiff playing football in the gutter or even on the pavement – but there was no evidence whatever that he had seen or ought to have seen any such thing.”

“... the high water-mark really of the claimant’s case is the defendant’s interview and the evidence that he gave. That was essentially how Mr de Wilde opened the case ...”

“I got a very brief glimpse of something in front of the car. I braked as an automatic reaction. I heard a loud bang then I seem to recall the colour blue in front of me. I knew I had hit something but I did not know what it was, or I should say, I didn’t know whether I had hit something or something had hit me. Once I had stopped the car I got out and saw a little girl lying in the road in front of me. She was maybe four feet in front of the car.”

“Now as I remember it, it seems as though there was nothing yet I know there would be cars all around at that time of night.”

“Q: And if that is right, and we have heard that she was certainly somewhere in the middle of the road, do you accept that you should have seen her? – A: No.

Q: Why not? - A: Because there was traffic on the inside of my car, on the left side of the lane, travelling parallel to myself and I wouldn’t be in a position to see in between the vehicles.

...

Q: You see, we do see cases that I categorise as “darters”, girl comes out of, child comes out between parked cars, the motorist doesn’t have a chance but that is not this sort of case. This is a case where the girl is well into the road at the time when she is hit by you, so for you to hit her she must have been ahead of you and within your vision and you just didn’t notice. Do you accept that? – A: No.

Q: Why not? – A: My confirmed opinion and belief is that the child came from between the traffic on the left into the nearside front edge position of my car.”

“But even if he ought to have seen her, it seems to me that at that point the collision was inevitable and a severe collision.”

Causation is a matter of fact and an appellant has a huge hurdle to surmount to challenge it. Mr de Wilde recognises that, perhaps even conceded it and certainly did not stoutly challenge it. Nevertheless I shall review that part of the judgment.

Conclusion.

Lord Justice Longmore :

(1) whether Mr Fairley was negligent in failing to see Annona before he did. The judge found that Mr Fairley only saw Annona very shortly before the impact and decided he was not negligent in failing to see her before;

whether, if Mr Fairley was negligent in not seeing Annona before he did, that negligence was the cause of her injuries. He decided that it was not.

(1) The accident occurred at about dusk 3 minutes before official lighting-up time, although the street lamps were on and a nearby signpost was lit;

visibility was poor partly because of the time of day and partly because the place, where the children were before Annona crossed the road, was itself a particularly poorly lit area;

It was not possible, even in good light, for a northbound driver to see persons on the pavement in the place where the children were, before the driver got to a point about 50 metres away and even less than that in the twilight;

The children were walking in a southerly direction before Annona crossed the road but were not doing anything to draw attention to themselves or to indicate any kind of hazard;

Annona, wearing dark clothing, walked into the road without looking, leaving Cheryl and Warwick on the pavement at a point just north of and, from the driver’s point of view, behind the signpost;

She walked briskly across the first lane of the northbound carriageway but slowed down or even, perhaps, stopped before impact; she did not turn round at any stage and Mr Fairley’s car hit her on her right side;

The Mazda car had dipped headlights on and was travelling at about 30 miles per hour not exceeding the relevant speed limit; Mr Fairley’s foot was “covering” the brake, viz hovering over the brake, without touching it;

The impact occurred 3.9 metres from the kerb;

The time taken by Annona from leaving the kerb to the point of impact was 1.7 seconds on the basis that she was walking briskly. It would have been 1.97 seconds if she had been walking at a normal pace.

Mr Fairley did not see Annona until shortly before the impact or, as the judge put it, “until she was virtually in his path”; even when he became aware he had hit something, he did not realise it was a person.

(1) that Mr Fairley could and should have seen the children while they were on the pavement walking south and, having seen them, should have slowed down to a speed well below 30 mph in case any of the children decided, for any reason, to come into or cross the road;

that Mr Fairley could and should have seen Annona as she stepped into the road and started to cross it;

that, if he had seen Annona at that time, he would have stopped his car and the injuries would not have occurred or would not have been so extensive;

that the apportionment of 60% of the blame for the accident to the 8 year old Annona was so extraordinary as to taint the whole of the reasons for the judge’s decision.

“A defendant would not expect, and no reasonable driver should expect, to see a pedestrian on a pavement, walking along a pavement, as giving rise to a potential hazard unless perhaps they are playing a game, larking about or waiting to cross or giving some indication that they are likely to move into his path.”

“. . . I think the earliest time that any reasonable driver should have seen Annona and reacted was as she had left the pavement. That was less than two seconds . . . . from impact.

I do not think that the fact that the defendant failed to do that can be regarded as negligent, given the circumstances of the road, the fact that he was well-lit, there was a lot of other activity upon which to concentrate . . . .

I do not think, given the very short time scale of less than two seconds that that sort of lack of observation should be regarded as negligent. I think it is a counsel of perfection to say that he ought to have seen and reacted the very second she stepped off the kerb.”