England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(HIS HONOUR JUDGE BENTLEY QC, sitting as a High Court Judge)

		Royal Courts of Justice Strand London WC2 Friday, 15th February 2002

Friday, 15th February 2001

1. LORD JUSTICE SCHIEMANN: Before us is an application for permission to appeal a judgment in a personal injury case where the claimant was crossing Oxford Street at a time when she should not have been, and the judge found that the overwhelming probability was that when the claimant, Mademoiselle Ferron, and Mademoiselle Perrier stepped into the road the crossing lights were showing green to traffic and red to pedestrians; there was a taxi driver who came along on her side of the road and they avoided him, but in the course of it the claimant fell under a bus which was on the other side of the road.
2. The judge asked himself where in the road did the claimant land after being hit by the bus? He says the evidence is conflicting, and he accepted the evidence of the claimant and her friend. The claimant said this:

"I found myself lying on the ground, my right leg bent and my left leg very close to the front wheel of the bus.

However, the bus had not yet run over my left leg.

I was trapped, because I was wearing a long coat and the material of the coat was caught in the wheel. My left leg was stretched out.

I felt a bit dazed but even so I tried to get up and I made a slight effort to get up when suddenly the bus backed over my left leg. I started to yell."

3. Her friend, Mademoiselle Perrier, said that she saw the bus reversing. She did not have time to say a word to the claimant. When the bus started to reverse the claimant started to scream:

"I realised what had happened and I shouted, and waved to signal the driver to stop. It was obvious that he had reversed over Armelle's left leg. It was only from the moment he reversed that she started to scream."

4. When she was cross-examined, she said:

"When I saw the bus backing over Armelle I shouted 'Stop'... I saw the bus backing over her leg... Armelle was immediately behind the rear of the front wheel. If she was there the bus driver should have seen her. Only her leg was under the bus, the rest of her body was at the side of the bus... I saw Armelle on the ground before the bus moved. I can't say for how long, but I had enough time to see her and then to see the bus go back."

5. She said that she had seen the claimant's left leg just behind the front wheel.
6. There was another witness whose evidence the judge did not accept in its totality. The driver, Man, gave evidence and said in cross-examination that after the bus had come to a halt he had opened his cab door and looked forward and had then seen a girl lying in front of his front wheels. He added:

"I didn't know where the second woman I'd struck was. I didn't check to see where she was."

7. The judge referred to a taxi driver, Graham, who said:

"The front tyre of the bus was actually on her leg. I told [the driver] to get it off her. He would not have had to have reversed off her leg if her leg had been behind the front wheels."

8. The judge said this:

"I was impressed by the claimant and her witnesses and, upon this issue, I have no hesitation in preferring their evidence to that of driver Man and Graham, the taxi driver."

9. The judge said of the taxi driver that he was a witness who had not been called and whose evidence had not been tested in cross-examination. The only explanation the judge had been given for the failure to call that witness was an assertion that he was "beyond the seas"; and so there was a Civil Evidence Act notice. The judge said:

"That assertion is wholly unsupported by evidence."

10. He pointed out that what the taxi driver said in the statement was in conflict with what he had said in an earlier statement and it did seem clear on the evidence that he, the taxi driver, did tell the driver of the bus to reverse. As Sedley LJ has pointed out, the taxi driver was in an unfortunate position because, as it turned out on the judge's finding, it was the instruction of the taxi driver which had caused the damage because the bus driver had followed those instructions. On one view of the facts the taxi driver was in part to blame. However he was not a party to these proceedings. The judge continued:

"... I find that after being struck by the bus the claimant fell backwards and ended up lying parallel to the side of the bus, with her long camouflage coat trapped under the front offside wheel, her left leg under the body of the bus and to the rear of the wheel and her right knee in a raised position with her right foot resting on the floor. I am further satisfied that, lying in this position, she was there to be seen by driver Man had he troubled to look."

11. It is common ground that the design of the bus was such that the driver did not need to get out, he could have just looked out of his cab door. The judge continued:

"I further find that as she was lying in this position driver Man reversed the bus over her left leg which up to this point had been uninjured, that he did so in response to an instruction from Graham [the taxi driver], and that it was this reversing manoeuvre which was wholly responsible for the injuries which the claimant sustained to her leg."

12. He says later on:

"I am satisfied that the claimant's carelessness in walking into the path of the bus did not cause the accident which occurred or the injuries which she sustained when the bus, some minutes later, was reversed over her leg, but merely set the scene for that accident. Accordingly, I reject the submission that the Claimant's accident was either caused or contributed to by her negligence."

13. He asked himself was it reasonable in the circumstances for Man [the driver of the bus] to act upon Graham's instructions to reverse without first checking for himself that the manoeuvre was one which it was safe to carry out? The judge goes on to say:

"... the clear impression which I was left with after listening to him was that he believed that the claimant was trapped under the front offside wheel and that it was necessary for him to reverse the bus in order to free her."

14. Man he agreed in cross-examination that he had been told during his training that after an accident he should not move the vehicle before the emergency services arrived. The judge concluded his judgment by saying:

"Even assuming in the defendants' favour that driver Man was... acting in response to an emergency of the claimant's creation (which strikes me as a somewhat strained construction of events), it was in my view unreasonable and negligent for him to reverse the bus in obedience to Graham's instruction without carrying out any checks of his own. Before starting up the engine and beginning his reverse he should, at the very least, have checked that it was safe to do so by looking all around and in particular looking near the wheels, especially if, as I find to be the fact, he did not at this time know where the second girl whom he had hit was or what had happened to her. Had he troubled to do so, he would have seen the claimant lying alongside the bus and in a position of danger. That was a step which any prudent and careful driver would have taken and his failure to take it is by itself sufficient to convict him of negligence. But matters go further than this. I am satisfied that, believing as he apparently did that the claimant was lying beneath his bus with her leg trapped under a wheel, it was negligent and indeed folly, for him to try and move the bus (a manoeuvre which if it miscarried might result in her sustaining further or worse injury) without first familiarising himself with her exact position in relation to the wheel and with the nature and extent of her injuries, and without assessing what risks such a manoeuvre would involve, whether it was one which should be undertaken at all and how it might be most safely accomplished. I am further satisfied that his failure to carry out such examination and assessment was a direct cause of the claimant's injuries."

15. Mr Nicholls who appears in front of us, makes the fair point that it was no fault of the driver that the pedestrian was under the wheel, but on the contrary it was the fault of the claimant. He goes on to say that the bus driver was not a professional rescuer, and no doubt that is true; but the basis of his criticism of the judge is essentially this. He says the judge said that the bus driver was not entitled to rely on the taxi driver and should have made checks, and, submits Mr Nicholls, that was not a judgment which the judge could have made. In my submission that is unarguable. The judge was perfectly entitled to take the view in the circumstances of that particular case - a bus which was stationary, with a bus driver who knew that he had hit two ladies and could only see one - he should have looked out of his cab, at the very least, to see whether the other one was anywhere near. If he had done that this would not have happened. I accept it was a busy evening in Oxford Street, but there was no emergency in the sense that there can be when two vehicles are travelling towards one another, each at 50 miles an hour.
16. It is submitted that the true cause of the accident was the lady's negligence in crossing the road when the lights were against her rather than the bus driver's. In my judgment that is an untenable and unarguable proposition, not so much in the abstract; but what is unarguable is that the judge, having found the contrary, was not entitled to do so. It seems to me he was manifestly entitled to do so.
17. It is also suggested that there was no evidence before the judge that the reversing caused the damage. As I understand it that is a rather separate point, not a causation point, but rather whether the judge was entitled to proceed on the basis that the lady had not been damaged earlier on. Nothing has been drawn to our attention which leads me to suppose that it is arguable that the judge's findings, which I have set out at length, were not based on evidence that he was entitled to prefer over other evidence.
18. I regard this as an application which stands no hope of success and therefore would refuse permission.
19. LORD JUSTICE SEDLEY: Beyond the usual grounds of appeal which range between the tenable and the untenable there lies the region, which we do not usually encounter in this court, of grounds which are utterly hopeless. It seemed to me when I took an initial decision on the papers that this case was in the last of those categories. I expressed that view, I have to say, so strongly that when to my surprise this application was renewed I altered my initial direction which was that it should come back, if renewed, before a single judge (it would have been me alone) so that it would come before a two-judge court and that there would be no question of a court sitting whose mind was already made up.
20. Having now heard not only Mr Nicholls' further endeavor to erect an appeal on the ruins of his case at first instance, but the views independently arrived at by my Lord, Schiemann LJ, I have to say that I am fortified in my original view that this application for permission to appeal is truly hopeless, both for the reasons given by my Lord and, if I may say so, for those which I originally gave in writing.
21. I consider in particular that the submission in which Mr Nicholls has seen fit to persist today, that the crushing of her leg was simply a continuing consequence of the claimant's admitted error in getting into the bus' path in the first place, is one which no counsel ought responsibly to feel able to advance. On the facts that he found, all of them entirely justified as he demonstrated by the evidence he had heard, I do not see how the judge, without laying himself open to an appeal the other way, could come to any conclusion other than that which he did.
22. I, too, would refuse permission to appeal.
(Application refused; no order for costs).