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
QUEEN'S BENCH DIVISION
(MR JUSTICE FULFORD)

		Royal Courts of Justice Strand London, WC2
		19 March 2003

Judgment
1. LORD JUSTICE PILL: This is an appeal against a judgment of Fulford J given on 2 December 2002 whereby he held that Richard King, the defendant, was wholly responsible for a road accident which lead to the death of Mr Henry Adjei whose administratrix, Mrs Victoria Adjei, the respondent, had sued for damages. The judge ordered that judgment be entered for the respondent on liability with damages to be assessed. The accident happened in the late afternoon of 11 May 1999 on West Hendon Broadway, London NW9, which is part of the A5. The appellant was driving a coach in a southerly direction near the junction with Borthwick Road, and the deceased was a pedestrian crossing the road from east to west. The accident happened in a built up area with a speed limit of 30 miles per hour. The road at this point is in three lanes; two of them southbound, the one nearer the pavement being reserved for buses. The deceased had left work with two colleagues, Susan Fagan and James Hooks, both of whom successfully crossed the road ahead of him. They both gave evidence. Statements of Miss Kerry Hutson and Mr Mark Roberts, who did not attend at the hearing, were admitted in evidence notwithstanding objections made on behalf of the defendant.
2. The judge, when referring to that evidence, acknowledged that care was required because they had not been made subject to cross-examination. Miss Hutson was driving a car ahead of the coach. Evidence was also given by Police Constable Dale, an experienced accident investigator, by the defendant and by Miss Louise Warren. There was evidence that the deceased normally crossed the road at a crossing further down the road. He had problems with his eyesight, but the judge found, and the finding is not challenged in this appeal, that he was wearing his spectacles.
3. Miss Fagan's evidence was that she was aware of the deceased walking behind her and Mr Hooks. As she stepped onto the pavement having crossed the road she heard a loud thud. She turned and saw the deceased landing on the ground at the boundary of the bus lane and the other southbound lane. The coach came to a standstill partly in the bus lane and partly on the near-side pavement. The deceased landed following the impact 3.2 metres ahead of the front off-side of the point where the coach came to rest. There was slight damage to the front off-side of the bus, and although the judge did not make a finding as to the point of impact, it was clearly with the front off-side of the bus and in the bus lane. Damage to the coach was slight.
4. Louise Warren, aged 17, was standing some considerable distance from the site of the collision and the claimed relevance of her evidence was that she said that a coach which could have been that driven by the defendant was going faster than any other vehicle on the road and was, in her view, being driven recklessly. At traffic lights he had to do an emergency stop to avoid hitting a bus that had pulled out in front of him. She came forward as a witness two weeks after the accident having seen an appeal for witnesses on a board on the Broadway. The only eyewitness evidence of the accident, apart from that of the defendant, was that in the written statement submitted under the Civil Evidence Act, and indeed, it was only Miss Hutson who saw the impact.
5. The accounts of Miss Hutson and Mr Roberts were contradictory. Mr Roberts, driving northbound, said that the deceased was standing on the eastern kerb as if about to cross the road. He saw the coach when it was about 10 to 12 feet from the man and then saw that the man had been hit by the coach. He thought that the coach was going too fast, but was not sure if it was travelling at more than 30 miles per hour. Kerry Hutson observed the collision in her driving mirror. I read her statement in full because it is that of the only eyewitness and because of its apparent cogency and consistency with other reliable evidence:

"On Tuesday 1 May 1999 I was driving our burgundy Renault car south along West Hendon Broadway. It was a clear, dry, warm evening and visibility was perfect. At about 5.30pm I was stationary at a red light outside Sainsbury's. I was in the driving lane as the inside lane is a bus lane. A coach was alongside me to my left. Traffic was exceptionally light for this time of night.

"The lights changed to green and I pulled away first, slightly quicker than the coach. I remained in the driving lane and continued south towards the next set of lights. As I approached them they began to turn red. I began to slow down and that's when I saw the old man crossing the road. He was to my left and he was crossing towards my right. He was just stepping into the bus lane off the left kerb as I went past. I came up to the traffic lights and I stopped. I checked my mirrors and I saw the man standing on the line that divides the bus and the driving lanes. I saw the bus approaching the man at quite a speed. He didn't appear to be slowing down. I turned around in my seat and I said to my daughter, 'Don't turn around'. At this point the accident happened. The bus was still in the bus lane. The man took a step forwards and then a step backwards, half turning his head when he did so to the right. This is when the bus driver reacted, at the point of impact. It was as if both the man and the driver saw each other at the same time. The coach steered over to the left and the front left wheel went up the kerb. The front corner of the bus hit the man down the middle of the man's back. This flung the pedestrian forwards landing in the driver's lane.

"I said, 'The man's not getting up.' The coach driver did not get out straight away. He seemed to hesitate. Before my lights changed the driver got out of the coach and a lady came running across the road."

6. After referring to personal matters, she completed the statement in this way:

"I do not want to get anyone into trouble, but in my opinion I feel that the coach driver could have slowed down to give the man more time. There were no vehicles between the coach and myself that would have obscured the bus driver's view of the pedestrian. The coach driver didn't appear to slow down at all. As there was no traffic around there was no reason why the driver could not see the pedestrian."

7. The judge did not resolve the difference between that statement and the statement of Mr Roberts. However, the judge appears to have accepted the evidence of Miss Hutson. Mr Dale's evidence was, and I will refer to it in more detail, that the speed of the vehicle at the start of the skid that was present was 25 miles per hour. The defendant gave statements to the police and gave evidence both at the inquest and at the trial. The judge considered his several statements in great detail and highlighted contradictions which appear in them. In statements he had put his speed at about 30 to 35 miles per hour and at about 25 to 30 miles per hour. His evidence at the trial was arguably conflicting in some respects with that given in the statements. While the judge did not say so in terms it appears, because of comments he made, to which I will refer, that he disbelieved the defendant. The judge concluded that the weight of evidence was that the defendant was simply driving too fast. The judge stated that the defendant was driving at a wholly excessive speed, apparently rejecting the evidence of Mr Dale as to speed.
8. The judge made his finding about excessive speed on the three grounds which appear at page 12 of his judgment. First, the earlier sighting by Miss Warren -- that was at best of a hardly explained manoeuvre by the coach driver and a manoeuvre a considerable distance from the accident. It was not evidence upon which an inference of greatly excessive speed at the site of the accident could reasonably be drawn. Second, the evidence of Miss Fagan and Mr Hooks that when they crossed the road they neither saw nor heard the approaching coach. That evidence is, in my view, of doubtful value. They were crossing the road when it was safe to do so and they were hardly likely on a road such as this to register the presence of the vehicles at a safe distance from them, including an approaching coach. Third, the judge purported to rely on the evidence of Miss Hutson in her statement to establish that the defendant's speed was wholly excessive.
9. Leaving aside the evidence of the defendant which the judge rejected, one is left on the question of speed with the evidence of Miss Hutson and of Mr Dale. Miss Hutson does not say in terms that the approach speed of the coach as it approached the site of the accident was greatly excessive, and indeed, her own evidence is not consistent with that view. She had been level with the coach at traffic lights a short distance to the north. When the two vehicles drove off she drove into a position ahead of the coach, and when she reached the next traffic lights described in her evidence, she was a significant distance ahead of the coach. There was no suggestion and it appears highly unlikely that she was driving at an excessive speed. If that is so, it is not a tenable finding that the coach was being driven at an excessive speed along the Broadway. The judge rejected the evidence of Mr Dale as to speed primarily, as he stated at page 9 of his judgment, because he did not consider that the "core evidence in this case" was "realistically susceptible to such a formulaic analysis". Mr Dale had done scientific and mathematical exercises which are customary in this type of case.
10. The evidence of Mr Dale shows that he had indeed conducted a proper and what is a conventional exercise by reference to factors including the length of the skid mark which the coach left -- 13 metres; the position in which the vehicle and the deceased came to rest; the amount and the position of the damage to the vehicle; and the nature of the injury to the deceased. Consideration of these factors led him to the opinion that it was a low speed impact and that the speed when the brakes created a skid was the modest one already mentioned.
11. In my judgment, the judge's finding as to speed was not, with respect, one which was open to him on the evidence. This is not a case in which this court is reversing primary findings of fact based on an impression of witnesses. It is based upon a consideration of the effect and inferences to be drawn from the evidence of the witnesses to whom I have referred. The judge based his entire finding against the defendant on the question of speed. He did not consider the other allegations which had been pleaded and had been subject to argument at the trial.
12. Comments having been made by this court as to the evidence and finding on the question of speed, Mr Saunt for the respondent sought leave to put in a respondent's notice reintroducing the pleaded allegations of negligence, which are conventional allegations in collisions of this kind. The application was made at a late stage, but in all the circumstances and notwithstanding the objection by Mr Sephton QC on behalf of the defendant, the court granted the application. It was argued by Mr Saunt that it was open to the judge to make the finding he did on those other pleaded grounds. He relied upon the evidence of Miss Hutson and Mr Dale in support of a submission that even if the defendant's approach speed was not excessive and/or was not the cause of the accident, the manner in which he reacted to the situation with which he was confronted involved negligence on his part. I would add that neither party in this case has sought a retrial.
13. This court is left in what in the circumstances is an unfortunate position of having to make its own findings of fact. It is nevertheless, in my view, in the interests of justice that the court should be prepared to do so. I find the judge's conclusion as to speed wholly unacceptable, but in my judgment, it is appropriate that the court considers for itself the evidence as a whole, and whether upon that evidence, a finding of negligence against the defendant is appropriate. The judge having disbelieved the defendant, I would not have just regard to his evidence as would reverse findings in relation to his credibility.
14. I have already referred, in part, to the evidence upon which reliance is now placed on behalf of the respondent. Mr Sefton makes two immediate points: first, he says that the court is confronted by the evidence of Mr Roberts. That evidence is inconsistent with a finding that the defendant had any opportunity or means to avoid the collision, and a finding by the court that he does would involve rejecting the evidence of Mr Roberts. I am prepared to take that course in the circumstances. In my judgment, the evidence of Miss Hutson is consistent with that of Mr Dale. It was she who had the only view of the impact and her evidence is, on the face of it, to be preferred to that of Mr Roberts.
15. Before referring to Mr Sephton's second point, I refer again to the evidence of Miss Hutson which is now relied on. It is that Miss Hutson plainly formed the view by the remark she made to her young daughter who was in the car with her that a crisis was imminent. The witness goes on to say that the deceased was already in the road and he: "took a step forwards and then a step backwards". Having said that she did not want to get anyone into trouble, the witness went on to say that the coach driver could have slowed down to give the man more time. He did not seem to slow down at all. That leaves open, in my judgment, though contested by Mr Sephton, a finding that confronted as he was by a pedestrian standing in a wholly inappropriate position in the centre of a road and taking a step forwards and then a step backwards, or at an earlier stage observing the predicament in which the pedestrian had placed himself, appropriate action by way of slowing down, giving a warning, by horn, or other manoeuvre in relation to the pedestrian was appropriate.
16. Mr Dale's evidence supported the view that the pedestrian was a considerable distance into the road as the coach approached. He notes that the movement of the coach and the direction of the skid mark was to the near side which lead to the coach coming to rest partly on the pavement. That is consistent with an attempt, albeit an ineffective one, to leave the pedestrian to his off-side and is not consistent with a pedestrian standing and stepping off the kerb. Second, Mr Dale, by reference to the pathological report, found that the injuries to the deceased were on his left side including injury to the ribs. That is consistent with Miss Hutson's evidence of the step backwards and the pedestrian possibly at that stage trying to regain a position on the near side kerb. It was properly suggested to Mr Dale in cross-examination at the trial that the left sided injury may have been caused by impact with the road. Mr Dale, while realistically accepting that he was not a medical witness, did say that with his experience it appeared to him that the injury to the left side was consistent with an impact with a hard flat object, rather than with a fall to the ground. In my judgment, based substantially on that evidence, it was appropriate that there was a finding of negligence against the defendant in this case.
17. I turn to the question of contributory negligence. The judge rejected the existence of any contributory negligence, but I am quite unable to accept his analysis of the conduct of the deceased. Even if the approach of the coach was somewhat too fast, there was no evidence whatever to suggest that the speed was such that on this straight stretch of road the deceased could not have seen the approach of the coach. Indeed the judge accepted in terms that the road is straight and clear and that pedestrians would be able to see in all directions. He stated that this was: "a perfectly safe and acceptable place to cross the Broadway notwithstanding the pedestrian crossing a little further up the road."
18. There may be uncertainties as to what the deceased did, although it appears that the judge accepted the evidence of the eyewitness, Kerry Hutson, as I also would be prepared to do especially having regard to its clarity and cogency. It does not, however, provide an account of the actions of the deceased consistent with a lack of causative negligence on his part. Whatever the precise movements the deceased made, he was stood in the road and I cannot accept the judge's description of the allegations against him as including: "a simply unbelievable assertion", and as: "the untenable suggestion that the deceased must simply have stepped into the path of the oncoming coach". The suggestion was described as "far-fetched". Given the visibility, the nature of the road and the circumstances including the comparatively light traffic at the time, the conduct of the deceased in the circumstances was such as inevitably involved a finding of contributory negligence.
19. In Nance v British Columbia Electric Railway [1951] AC 601, Lord Simon stated at cases 611:

"When contributory negligence is set up as a defence its existence does not depend on any duty owed by the injured party to the party sued. All that is necessary to establish such a defence is to prove that the injured party did not in his own interest take reasonable care of himself, and contributed by this want of care to his own injury. For when contributory negligence is set up as a shield against the obligation to satisfy the whole of the plaintiff's claim, the principle involved is that where a man is part author of his own injury, he cannot call on the other party to compensate him in full."

20. In my judgment, whatever precisely the deceased's actions were immediately before the impact, the inevitable conclusion is that he did conduct himself in a manner wholly inconsistent with a reasonable regard for his own safety, and tragically and regrettably, such a lack of regard contributed to the collision which in fact occurred.
21. One comes to the question of apportionment as between the driver of the vehicle and the pedestrian. In Baker v Willoughby the trial judge was faced with that problem, and in that case found 75 per cent against the driver and 25 per cent against the pedestrian. That finding was reversed in this court on the basis that the respective liabilities should not be differentiated. On appeal to the House of Lords [1970] AC at 484, Lord Reid stated:

"The Court of Appeal were wrong in holding that Donaldson J must have misdirected himself in some way in reaching his conclusion on the apportionment of liability. In considering the question of apportionment, two factors, namely causation and blameworthiness fall to be considered. The Court of Appeal were wrong in equating opportunity of avoidance with blameworthiness. That court appeared to take the view that because both parties had an equal opportunity to see one another for the same period of time, they were equally to blame for the accident. This is a proposition of law that cannot be supported. The positions of pedestrian and motorist are quite different. A heavier liability lies on the motorist for he has only to look in one direction in driving his vehicle whilst a pedestrian has to look in both directions before crossing the road."

22. I bear in mind that principle and the facts of this case. I bear in mind also that this court has not had the opportunity to consider the witnesses and their evidence itself. It has been placed in a position where it has taken the view, the correct view in my judgment, that it should reach the conclusion it has and go on to make the apportionment. Doing the best I can, I would assess the position in this case as being liability of 60 per cent upon the driver, so that I would make a finding of contributory negligence of 40 per cent. To the extent I have indicated, I would allow the appeal.
23. LORD JUSTICE CHADWICK: I agree.
24. LORD JUSTICE LONGMORE: I agree also. Although we are differing from the judge, I do not feel it necessary to add anything.
Order: costs against the claimant. A section 11 order with the question of any contribution from the claimant being left for the costs judge. A legal aid assessment of the repsondent's costs.