England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Honourable Mr Justice Morland
[2004] EWHC 77 [QB]

		Royal Courts of Justice Strand, London, WC2A 2LL
		10/11/2004

Lord Justice Keene:

1. At about 8.00 a.m. on 28 August 1996 the appellant, Paul Slater, a 25 year old man suffering from Down's Syndrome, was knocked down by a car when crossing the road outside the house where he lived with his parents. He suffered catastrophic injuries, which have rendered him tetraplegic and in need of 24 hour care. It is not suggested that any blame attached to the driver of the car which struck him.
2. Since August 1991 Paul had spent every weekday at Hillcrest Day Centre, which was operated by the Buckinghamshire County Council ("the County Council"), the first respondent. That day centre was situated about 4 miles from his home in High Wycombe. He was taken there each weekday by minibus and brought home in the same way. He was picked up at about 8.00 a.m. and set down on return at about 4.20 p.m. The minibus was owned and operated by Mr Stigwood, the second respondent, who provided both the driver and a person as "escort" for the disabled passengers. They numbered about twelve and were collected and returned at or close to their homes. Mr Stigwood provided this service under contract with the County Council. Between August 1991 and late 1994 the service had been provided by a different operator, Bucks Mini Buses, but they terminated their contract for this route in 1994 and Mr Stigwood successfully tendered for the new contract.
3. On the day of the accident a Royal Mail van was parked near Paul's house, 209 Boundary Road. It had been driven there that morning by Mr Anson, who regularly delivered mail to the Slaters. He parked his van as was his usual practice half on and half off the pavement outside numbers 207 and 209, thereby reducing visibility to the right for a pedestrian crossing the road from the pavement outside number 209. Mr Anson had to deliver mail to number 209. His evidence was that when he arrived at the front door it was already open and Paul was there in the hall with his mother.
4. Boundary Road is a single carriageway, with a 40 m.p.h. speed limit. At that time of day, 8.00 a.m., it was a busy road with traffic travelling in both directions. The mini-bus, which came to collect Paul, arrived as usual from his left, stopping on its nearside on the opposite side of the road from Paul's house. Passengers being carried in it obtained access by way of a door on its nearside. It stopped partly on the carriageway and partly on the far pavement. Paul therefore had to cross the road to reach the mini-bus.
5. The escort on the mini-bus that morning was Mrs Brooks, who seems to have been the escort regularly used on this route, at least since about 1992. She knew Paul well. The judge, Morland J., regarded Mrs Brooks as an impressive witness. Her evidence was that she got off the mini-bus and walked to the rear of it on the pavement. She saw Paul standing on the pavement opposite waiting to cross. In a statement to the police she said:

"I walked into the middle of the road behind the coach and put my hand up and said, "Stay there Paul" as there was a car coming along behind us from the Loudwater direction. I then saw that there was another car coming in the other direction, I again told Paul to stay where he was, but he had already started to run out. The car was travelling fast but was not able to stop in time and hit Paul knocking him up in the air like a rag doll."

Paul's mother, Mrs Slater, confirmed that Mrs Brooks had put up her hands and told him not to cross. The judge found that:

"… the immediate cause of the accident was Paul's running or rushing from behind the front of the Royal Mail van into the path of E619 HOC whose driver had no opportunity of avoiding hitting him, disregarding the warning of Mrs Brooks who in my judgment is absolved of any negligence."

6. Paul, suing by the Official Solicitor, claimed damages for negligence against both the County Council and Mr Stigwood. It was alleged that one or other or both of them had failed in their duty to take reasonable care not to expose him to the risk of foreseeable injury during his collection and transportation to the day centre. In particular, it was alleged that an unsafe system for collecting him had been put in place, exposing him to a foreseeable risk of harm. Neither respondent denied owing to Paul the duty to take reasonable care not to expose him to such a risk but each denied any breach of that duty.
7. During the trial there was evidence about the contractual arrangements between the County Council and Mr Stigwood, it being contended on behalf of the appellant that the contract required Mr Stigwood, by using Mrs Brooks, physically to collect Paul from the door of his house and escort him across the road and onto the mini-bus. The judge did not accept that, emphasising that, as the clients were people with varying abilities and varying degrees of learning difficulties, a degree of flexibility was required to give business efficacy to the contract. The contract envisaged that some clients would be able to make their own way to and from the transport, even if the transport was on the opposite side of the road.
8. The judge also rejected a contention advanced by Mr Stigwood that it had been specifically agreed by the County Council that the authorised pick-up point for Paul was on the opposite side of the road to his house. But Morland J. said at paragraph 74 of his judgment:

"Although I am not satisfied that there was any specific agreement that Paul's designated pick-up point was on the pavement on the opposite side of the road to his house, I am satisfied that the settled arrangement was that that was Paul's pickup point and if he was not there the escort would cross the road and collect him either from the pavement outside his house, his driveway or his house depending upon where he was and then escort him across the road to the minibus. I am satisfied that this arrangement had become the established practice within a few weeks of Paul being picked-up by Bucks Mini-Buses in August 1991 and that this established practice was taken over by Stigwoods in 1994 along with the escort Mrs Brooks."

9. Both Mrs Brooks and the regular driver of the mini-bus, Mr Illingworth, another witness who impressed the judge, testified that on most days Paul would already be standing on the opposite side of the road to his house. Mr Illingworth's evidence was that he had seen Paul crossing the road on his own. The judge found that Mr Stigwood, Mrs Slater, Paul and the management at the County Council's day care centre accepted that the recognised pick-up point was on the far side of the road from Paul's house. He also found that:

"… very very much more often than not Paul was at the pick-up point having crossed the road on his own, but that not infrequently because he was a late riser he would be collected by or met by the escort who was regularly Mrs Brooks either at his front door, on the driveway or on the pavement on his side of the road."

10. In considering whether such a system involved negligence on the part of either or both respondents, Morland J. noted the characteristics of Boundary Road to which I have already referred. He also took account of Paul's substantial learning difficulties and of the fact that he was impetuous and unpredictable. But the judge also found that Paul would obey instructions, especially from Mrs Brooks.
11. Unsurprisingly the judge paid particular attention to Paul's capabilities in respect of road safety. He set out passages from the evidence of Paul's mother, Mrs Slater, and from two social workers who were familiar with Paul and his ability to cross roads. As a result of his consideration of the evidence, Morland J. arrived at the following conclusion, doing so (he said) with regret because of the devotion and care shown towards Paul by his parents:

"The clear and unhesitating conclusion, which I have reached, is that negligence is not established against the Buckinghamshire County Council or Stigwoods. Certainly long before the time of the accident Paul had reached a level of independence and road safety competence so that he was able to cross Boundary Road on his own and reach the pick-up point with the minibus without his being exposed unreasonably to the risk of foreseeable injury even in the rush hour. Indeed he must have crossed that road at that time on his own in safety many hundreds of times during the five years before his accident." (paragraph 99)

12. It is that conclusion which is now attacked by Ms Gumbel, Q.C., on behalf of the appellant. She advances two submissions. First, she emphasises that on the pleadings it had not been contended by either respondent that Paul was competent to cross Boundary Road on his own at this time of the day when it was particularly busy. The County Council had relied on having made appropriate arrangements with an independent contractor, under which a competent adult was to be employed as an escort and the contractor was to take all reasonable steps to ensure the safety of those being escorted. Their pleaded case had been that the detailed arrangements for the picking up of Paul were not matters for which they were responsible. The contractor, the second respondent, had initially blamed Paul's mother for allowing him to cross on his own and had subsequently pleaded that Paul's behaviour had been impulsive and not preventable by the exercise of reasonable care on anyone's part. In the alternative the contractor had pleaded that the responsibility for devising a safe system was that of the County Council.
13. For my part, I cannot accept that there is any force in this point on the pleadings. The judge had to take account of the evidence as it came out at the trial, which led him to the conclusion already quoted about Paul's road safety competence. This had obviously been a hotly contested issue at trial, with cross-examination by all parties directed to the issue. No one seems to have contended at trial that such evidence and cross-examination was irrelevant, given the state of the pleadings. No doubt it would have been tidier if the pleadings had been formally amended, but since the parties at trial clearly regarded Paul's road safety competence as a live and indeed vital issue it would have been wholly artificial for the judge to have assumed that it was not in issue. It patently was.
14. The main criticism made on behalf of the appellant of the judge's conclusion in paragraph 99 is that it was contrary to the evidence. Ms Gumbel has taken us through a number of passages in the witness statements and the transcripts of the oral proceedings at trial, seeking to establish that proposition. It is unnecessary to refer to all the passages relied on, and I will confine myself to those which give most assistance to her case. Thus reliance is placed on some evidence from the postman, Mr Anson, that he had sometimes seen traffic having to slow down for Paul when he was crossing Boundary Road on his own, the implication being that Paul was crossing when it was unsafe to do so. Indeed, at one point Mr Anson described what happened as "a near miss". Yet such evidence has to be seen in the context of other evidence from Mr Anson that over the course of some four years he had only seen Paul cross on his own two or three times and that he did not appear to be in any difficulty when crossing on his own.
15. Then there is a passage when Mrs Brooks, the escort, was being cross-examined. She said that if she saw Paul in his driveway she would go and get him, rather than letting him cross on his own, to make sure he was safe. She also said, in response to a question asserting that it would not be safe for him to cross on his own at that time of the morning, "Not really, no". On the other hand, her evidence was that normally Paul would be waiting at the appointed place on the opposite side of the road from his house, that she had seen him crossing on his own and had never seen his mother crossing with him. She also said that he knew when to cross and that she had never seen him having any difficulty in crossing.
16. Ms Gumbel also referred us to part of the evidence of Mr Illingworth, the regular driver of the mini-bus, where he said in effect that, if Paul was still on his own side of the road when the mini-bus arrived, the procedure was for the escort to go across the road and get him. That was what Paul's safety required, rather than letting him cross on his own.
17. Again, Mr Illingworth's evidence was not all one way. He testified that on most days Paul would be waiting at the pick-up point on the opposite side of the road to his house and that his mother was always looking out of the door to see that he was all right. Mr Illingworth described the road as being busy at that time of day but straight and not dangerous.
18. It is argued on behalf of the appellant that not merely was there evidence that it was not safe for Paul to cross this road at this particular time but that no witness gave evidence that he was competent to cross it at this very busy time of the day. The fact that he had crossed it without injury many times before does not show that he was not at risk when so doing. The system set up by the respondents should not have allowed Paul to cross this road at such time without a responsible adult assisting him. Moreover, the arrangements were haphazard, allowing him sometimes to be picked up on one side of the road, sometimes on the other and sometimes from the house. What was required was a system where he was collected each morning from the house itself.
19. Ms Gumbel also submits that this is what the Specification of Service, one of the contract documents forming part of the agreement between the County Council and Mr Stigwood, required. She cites a passage from that Specification of Service, which stated that the escort

"is required to assist clients who have learning disabilities from their homes to and onto the vehicle."

A similar passage appears in another of the contractual documents, the Code of Conduct. It is argued that these provisions meant that the escort had to collect the clients physically from the door of their homes, and that that points towards a recognition that such a procedure was required if the duty of care was to be carried out.

20. Let me begin with this last submission. As I have indicated earlier, the judge rejected it and, in my view, he was right to do so. The phrase "from their homes" is, taken in isolation, ambiguous. It could have the meaning suggested or it could be being used in a more general sense. But it cannot be read in isolation. Another paragraph of the Code of Conduct, paragraph 9, states:

"Some passengers are able to make their own way to and from the transport."

That is inconsistent with the meaning suggested. When these contractual documents are read as a whole, it is clear that the judge was right to construe them as allowing a degree of flexibility to Mr Stigwood and the escort, so as to accommodate both the varying abilities of the clients and the aim of teaching them to become more independent. I can see no force in this part of the appellant's case.

21. I turn to the crucial issue about the evidence before the judge. It needs to be borne in mind that his conclusion as to the absence of negligence was based upon a finding which was a finding of fact, namely that Paul had reached a level of road safety competence enabling him to cross Boundary Road in reasonable safety even in the morning rush hour. That finding of fact as to Paul's competence was reached after a five day trial, during which there was inevitably a certain degree of conflicting testimony and indeed some inconsistency on the part of individual witnesses. This court should be slow to overturn such a finding of fact on the basis of transcripts of evidence which it has not heard being given orally and should not overturn it unless it is clear that the judge's finding was not open to him on the evidence.
22. In setting out some of the principal passages relied on by the appellant, I have already sought to indicate how there are other passages of evidence from the same witnesses which paint a somewhat different picture. Mrs Brooks quite naturally took the view that, if Paul had not already crossed the road, it was better for her to go and help him across. It does not follow that it was unsafe for him to cross on his own. But in addition there are important pieces of evidence relied on by the judge when coming to his finding, and these too need to be taken into account. There was written evidence from Mr Christopher Taylor, a project outreach worker with the County Council, who had worked with Paul to enable him to use a public bus service from his home to another day centre. This evidence was that, after some training, Paul was able to cross Boundary Road to his house in the afternoon at about 3.15 p.m. to 4.00 p.m. According to Mr Taylor, Paul

"was capable of doing this alone and in safety."

He described Paul as very cautious and not a person who took risks with traffic. Ms Gumbel rightly points out that this evidence was not dealing with Paul's ability to cross Boundary Road in the rush hour, but it is nonetheless of relevance to the issue the judge had to determine.

23. There was another written statement put in evidence, this being one made by Jacqueline Angold, a key worker at the day centre attended by Paul. For nearly the whole of the period during which he had attended the day centre, he had been in her group, and her evidence indicated that she knew him well. She referred to him having a "conscious sense of self-preservation" and as being "very sensitive to danger". She described the ways in which Paul and others at the centre were encouraged to lead more independent lives. Her evidence was that he would not make a snap decision about crossing Boundary Road:

"He would be hesitant and then look left and right and then perhaps do it all over again. Equally he would walk along the road until he found somewhere to cross where he felt safe and comfortable. When he did cross the road he would do so briskly until he was back on safe territory again.

If he found that the road was busy, then I believe then he would just not bother to cross and stay on the side of the road walking until he found somewhere he could cross."

Ms Angold also referred to his mother telling her how Paul used to walk from his house to the British Legion in Flackwell Heath in order to go for a pint of beer, this being on a Sunday. Later, according to his mother, he had chosen a pub where he used to go instead, on his own, to buy himself a beer.

24. Ms Gumbel draws attention to another passage in Mr Angold's evidence where she said that Paul was not capable of using public bus services to go to the day centre because

"it would have been a lot more complicated, two buses, bus station, and dangerous road to cross."

However, it seems to have been the accumulation of problems, rather than just the road-crossing problem, which led Ms Angold to that conclusion.

25. The evidence of Paul's mother, Mrs Slater, was undoubtedly of importance. In her witness statement she said:

"I should make it clear that Paul regularly left the house, every Sunday, for example, to go to the local shops or the British Legion Club in Queensmead Road, Loudwater to play snooker. Both of these trips involved him crossing roads by himself. I have seen him cross roads by himself on many occasions and can say that he was always extremely careful not to cross if a car was coming. If a road was particularly busy then Paul may have taken a long time to cross but he would have been very careful – he was very much aware of the dangers posed by motor vehicles."

26. In her oral evidence she confirmed that Paul had been attending the Hillcrest day centre for about five years when the accident happened. She had seen him cross the road on his own and he never crossed if there was a car coming. She had never seen Paul dash into the road and before the accident she had never seen any "near misses". He went to the British Legion on his own which necessitated negotiating a round-about and crossing Boundary Road but that was at weekends. He was normally very cautious and she had never seen him run, rush or hurry across the road.
27. It seems clear from Mrs Slater's evidence that she was happy to allow Paul to cross Boundary Road in the rush hour, as happened on numerous occasions. That can only have been because she regarded it as something he was capable of doing in reasonable safety. Her assessment is indeed borne out by the fact that he had crossed Boundary Road at that time of day on his own to reach the mini-bus on, as the judge found, many hundreds of occasions during the five years before the accident and had done so in safety. That history is relevant to any assessment of his competence to carry out such an activity safely.
28. It is contended on his behalf that there was evidence that he had difficulty crossing when there were parked cars and that, on the occasion of the accident, the Royal Mail van was parked near his driveway. It is right that his mother had said in her witness statement that they had tried to teach him to walk into the road a little way to the edge of a parked vehicle so that he could look around it, but this never "clicked" with him. When she dealt with this in her oral evidence she added that he would always stand on the pavement and always had his feet on the pavement.
29. However, what is clear is that the presence of the Royal Mail van parked in this way was a regular feature at this time of the morning near Paul's driveway. Mr Anson's evidence was that on the day of the accident he

"parked in my usual position half on and half off the pavement outside 207 and 209 Boundary Road." (emphasis added)

He confirmed orally that he had been doing that for about four years prior to the accident. It must follow that on innumerable occasions when Paul had crossed Boundary Road safely at that time of day, and when his mother had regarded him as competent to cross, there would have been a parked vehicle there. There seems to have been nothing unusual about this aspect of the situation on the day of the accident.

30. Of course it is correct that not all the evidence pointed towards Paul being competent to cross that road at the time and in all the circumstances existing on 28 August 1996. Inevitably there was some evidence suggesting a different conclusion. But there was ample evidence on which the judge could properly reach the finding about Paul's competence which appears at paragraph 99 of the judgment. I am bound to conclude that that finding of fact was one which was open to him on the evidence. If that is so, then the fact that sometimes Paul got up late and was in fact collected from his own house or driveway is nothing to the point. There was no evidence that Paul was in some way confused by such flexibility in the arrangements. It did not amount to a defect in the system.
31. In her reply Ms Gumbel raised a point which does not seem to have figured significantly before in these proceedings at trial or during this appeal hearing. She commented that the evidence about Paul waiting and taking his time to cross if the road was busy was not directed towards the situation where the mini-bus had already arrived. In such circumstances he would know that he had only a limited time to cross the road, and so that was a different situation. I see the force of that argument, which really represents a departure from the main submission advanced for the appellant, namely that he should not have been allowed to cross the road "on his own". Indeed, at one point during earlier argument Ms Gumbel acknowledged that her case would be the same if the situation had occurred without the mini-bus being there. So this further submission represents a somewhat different approach.
32. That does not necessarily mean that it is a bad argument, but in my judgment it is in fact without merit. It is right that the mini-bus was there at the time of the accident and so was the escort, Mrs Brooks, at the rear of the mini-bus, giving instructions to Paul. In that sense he was not truly crossing the road on his own. The evidence was that Mrs Brooks told him to wait and that initially he did, but then ran across. But there was also a great deal of evidence that Paul would normally wait when instructed to do so. That was Mrs Brooks' own evidence at trial, and it was confirmed by Mrs Slater. Mr Anson's evidence about what tended to happen was that when the person from the mini-bus told Paul to stop, he did stop (paragraph A 115). The judge made a finding in his judgment, paragraph 88, that Paul

"would obey instructions, especially from Mrs Brooks."

That finding has not been challenged before us and it was one which was undoubtedly open to the judge on the evidence. So, while it is right that on this particular occasion the mini-bus was already there, it is also the case that the accident happened when Paul was under the supervision of the escort and had been instructed by her not to cross. On the evidence, it was not reasonably foreseeable that he would disobey such an instruction, nor was it foreseeably unsafe to allow him to cross Boundary Road under the supervision of the escort.

33. I conclude that the judge's finding that the system in operation was a reasonably safe one, given Paul's competence, was soundly based. Like Morland J., one can only reach such a conclusion with considerable sadness because of the tragic consequences which this accident has had for Paul and for his devoted parents. But I can see no fallacy in the judge's reasoning, nor in his conclusion that the system being operated did not indicate negligence on somebody's part. In my judgment negligence was not established in this case.
34. It follows that it is unnecessary to determine which of the respondents bore the responsibility in law for the setting up of the arrangements for the collection of Paul Slater. I would dismiss this appeal.

Lord Justice Jonathan Parker:

35. I agree that this appeal should be dismissed for the reasons which Keene LJ has given. I also agree with the observations made by Brooke LJ, whose judgment I have had the benefit of reading in draft.

Lord Justice Brooke:

36. I also agree.
37. So far as Miss Gumbel's first point is concerned, it is of course correct that the parties' statements of case ought to set out the issues which the judge will be invited to determine at the trial. It often happens, however, that when a trial starts the evidence of witnesses develops in a way that is unexpected, and that lines of inquiry are initiated into matters which were not embraced by the relevant statement of case. Strictly, as Keene LJ says (at para 13), the statements of case ought to have been amended to accommodate the extended battleground.
38. But Miss Gumbel and Mr Witcomb were present throughout the trial and we were not shown any evidence to the effect that they objected to these lines of inquiry being opened up or that they sought any ruling from the judge on these matters. Sometimes it may be that a party seeks an adjournment in order to be able to call witnesses on a new point or points, if the judge allows them to be taken after an objection has been made.
39. I set out the relevant principles in my recent judgement in Re-Source American International Ltd v Platt Site Services [2004] EWCA Civ 665 at [62]:

"…[T]he unexpected often happens in the course of a complicated trial. If it does, it is the judge's duty to reappraise the situation, if any of the parties request it, and to permit a party to amend its statement of case if satisfied that this can be done without injustice to a party affected by the amendment. If necessary and appropriate, an adjournment may have to be granted to permit further evidence to be adduced to meet the new case."

40. Since no attention was apparently paid to these matters during the trial, and since there is no appeal against any procedural ruling the judge made when new lines of inquiry were opened up, I agree with Keene LJ that it is now not open to Miss Gumbel to take for the first time in this court points about the limits of the original coverage of the parties' statements of case which could and should have been taken at the trial if they were good ones.
41. As to her second point, it would of course have been better if the different responsibilities (if any) of Paul, Paul's parents, the county council and the council's contractors had been clearly defined at the outset and if the parties had then stuck by what was agreed (and preferably minuted in writing). The evidence, however, did not show at all clearly what had been agreed at the outset. Mrs Brooks, whose evidence clearly impressed the judge, had acted as the escort ever since the "new run" to Hillcrest started. She then joined Stigwoods when they took over the run after the previous contractor gave it up on his wife's death, and all through the time up to Paul's accident the "pick-up" point was on the other side of the road from Paul's home. She could not remember Mrs Slater ever complaining to her or to her driver (who was usually Mr Illingworth) that the coach should stop on the side of the road where Paul lived. Mr Illingworth, who took over the driving on this run when Stigwoods won the contract, and who was another witness who impressed the judge, gave evidence to similar effect.
42. We are only concerned in this case with the contention that in 1996 the defendants were in breach of the duty of care they owed Paul, when the pick-up point had been in the same place for five years. On the totality of the evidence I find it impossible to hold that the judge's clear and unhesitating conclusion was wrong. There was ample evidence that long before the time of the accident Paul had reached a level of independence and road safety competence so that he was able to cross Boundary Road, even in the rush hour, without his being exposed unreasonably to the risk of foreseeable injury. This was a tragic accident, but neither defendant is legally liable for it, because on the judge's findings of fact they took such reasonable care for Paul's safety as the law required of them.
43. I, too, would therefore dismiss this appeal.