England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PLYMOUTH COUNTY COURT
(MR RECORDER MOUSLEY)

		Royal Courts of Justice Strand London WC2 Tuesday, 28th May 2002

Tuesday, 28th May 2002

1. LORD JUSTICE LATHAM: This is an appeal from a decision of Mr Recorder Mousley of 20th March 2002 in which he dismissed an action by the claimant for personal injuries arising out of an accident which occurred on 21st June 1998. The claimant was a pedestrian and was at the time with her partner, Timothy Francis, and their daughter Isabella at the Promenade Embankment in Kingsbridge in Devon. The evidence was that the partner and the daughter went across the road at a time when it would appear that the respondent was about 120 metres away driving along the side of the road from which they had crossed. It was a busy day in the sense that there were pedestrians around and there was traffic, although there is no clear evidence as to how much traffic there was travelling in the direction that the respondent was travelling, save that there was some traffic behind her.
2. The road is subject to a 30 miles an hour limit and at the relevant place there was no pedestrian crossing. The respondent's evidence was that as she approached the spot where the accident eventually occurred she was aware that the appellant was on the pavement and appeared to be gesticulating across to the partner and the child, and as she approached closer the appellant looked to her (that is the appellant's) left away from the respondent. When she was a very short distance away, which was accepted by both parties essentially to have been about 10 metres away, the appellant stepped into the road unhappily straight in front of the respondent.
3. The judge concluded that the respondent had been driving at approximately 30 miles an hour, in other words she had not been driving in excess of the speed limit, and did not consider that that of itself amounted to negligence. Equally, he concluded that the critical distance, as he put it, was the distance at the time when the appellant effectively committed herself to stepping off the curb which he put at 10 metres away from the respondent, as I have indicated, and considered that in those circumstances there was no blame that could be attributed to the respondent because there was nothing that she could do at that time to avoid the accident.
4. The criticism made on behalf of the appellant of the recorder's conclusions is first, that the speed at which the respondent was driving was in any event excessive, bearing in mind the presence of significant numbers of pedestrians on the pavement, and in particular by reason of the fact that she was aware that the claimant's partner and the daughter had gone across the road leaving the appellant clearly in a position indicating that she might wish to join them, so that she should have been aware of the risk that the appellant might cross the road and accordingly moderate her speed. Second, it is submitted that she should have, having appreciated those facts, not merely moderated her speed, but also take taken such other steps such as being ready to sound her horn or to take avoiding action in the event of the appellant stepping off the pavement.
5. There is clear force in those submissions. The fact is that the case is a classic case where the judge hearing the evidence has to make an assessment at the end of the day as to whether or not in the circumstances even if he were to conclude that, as undoubtedly was the case, the appellant has to bear the major burden of responsibility for the unhappy accident that befell her, there was some liability on the driver for failing to take the sort of precautionary steps to which I have referred. On the other hand one has to bear in mind the fact that the driver lives in the real world of the normal problems presented by travelling along a road which would undoubtedly have borne a significant amount of traffic other than her, and determine the extent to which it is appropriate to impose upon her in those circumstances the duties which were urged on the appellant's behalf. It seems to me that this particular type of case always depends upon the assessment made by the judge of the evidence before him or her at the hearing and it is not easy for this court ever to make a sensible critique of the judge's decision unless it can be clearly shown that the judge below was wrong.
6. Despite the fact that Mr Porter has been able to put forward a formidable argument that the appellant's case had substance, I am not persuaded that this court would in fact interfere ultimately with the conclusions of the recorder.
7. In relation to the speed of the respondent it seems to me that it is a classic case where the evidence was not so much directed to precise speed, but to the general assessment of speed, in other words the extent to which it could properly be said that the speed could be thought to be excessive in the circumstances; and there was nothing in the evidence to suggest, it seems to me, that the recorder was wrong in concluding that it was not. The evidence of the respondent as to the lookout that she kept justified the conclusion that she was keeping a proper lookout. The question accordingly was whether or not what she saw should have resulted in her taking some sort of, as I have already indicated, precautionary steps.
8. In the circumstances of the respondent clearly seeing the appellant looking to her left it seems to me that the recorder was within his judgment as to whether or not that would have in the particular circumstances alerted the respondent to the fact that she must take some particular action at that stage. I am not persuaded that the recorder was wrong to conclude that there was no burden on her at that point to do so. I recognise that that might not have been the approach of every court to the evidence in similar types of circumstances, but the fact is that this was the recorder who had to try the case at the time and that was his conclusion and it was in my judgment open to him to come to that conclusion.
9. I am accordingly of the view that there is no real prospect of persuading this court to interfere with the assessment of the recorder, and like the single Lord Justice who dealt with the matter on paper I accordingly refuse permission to appeal.
(Application refused; detailed assessment of costs).