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 SWANSEA COUNTY COURT
(HIS HONOUR JUDGE GRAHAM JONES)

		Royal Courts of Justice Strand London, WC2
		10 June 2004

1. LORD JUSTICE LATHAM: This is a renewed application for permission to appeal the decision of His Honour Judge Graham Jones dated 10 March 2004, at Cardiff County Court, in a road traffic action in which the claimant claimed damages against the defendant for very serious injuries which he sustained on the night of 28 February 1998. It is worthwhile identifying what those injuries were because they are relevant to the way in which the matter was dealt with by the judge. The injuries consisted of a very severe compound fracture of the right tibia, two skull fractures and consequent neuro- behavioural disability, injuries to the facial skeleton, permanent loss of taste and smell, whiplash injury to the neck, fracture to the right humerus and a consequential adjustment disorder.
2. The accident occurred when the claimant walked out past a parked taxi into the path of the car being driven by a police officer in the Dyfed Powys Police. There is no doubt that the claimant was under the influence of alcohol, and had stepped out into the road when he could and should have been aware of the presence of the motor car. On the other hand, the police officer was driving, as the judge found, at 40 miles per hour past the parked taxi, late at night in a built up area, and, again as the judge found, could and should have anticipated that there might be pedestrians in the sort of condition of the claimant in the vicinity at the time. The judge concluded that both therefore, the claimant and the defendant, bore responsibility for the injuries sustained by the claimant and apportioned responsibility for those injuries as to 65 per cent against the defendant and 35 per cent against the claimant.
3. Mr Spackman, on behalf of the defendant, is seeking permission to appeal against that apportionment. He submits that it was clearly and obviously wrong to conclude that the defendant should bear a majority of the responsibility. He accepts that if he was simply asking us to adjust the contributory negligence of the claimant from 35 per cent upwards or downwards but still remaining a minority of the responsibility, that would not be something which this court would properly entertain as a proper ground of appeal. He submits that, as he suggested to the judge, the sort of proportion of responsibility that ought to be borne by the defendant was in the region of 25 per cent by analogy, as he argued, with the cases involving seat belts, and in particular the decision of this court in Froom v Butcher [1976] 1 QB 286. The basis of his argument that there is an analogy between the two cases, that is Froom v Butcher and the present, in that the judge - in his judgment relating to liability as opposed to apportionment because the judge divided the trial into two parts for that purpose - concluded as follows:

"Had the police car been driven at a reasonable and proper speed in the circumstances and had the driver taken every reasonable care, the collision could not have been avoided. Mr Parkinson would have sustained some injury."

4. He submits accordingly that this a case akin to the seat-belt cases because the accident was inevitable. As in the seat-belt case, the accident was caused by the driver of the car or some other person responsible for the accident, the only question being how the liability should be ultimately apportioned, bearing in mind that the fault on the part of the claimant is simply in those circumstances relating to the extent of the injuries sustained.
5. It seems that, ingenious though that supposed analogy is, it ignores the fact that in the seat-belt case what the court is concerned with is the extent of liability of a claimant in relation to a precaution which he or she should have taken in order to avoid or reduce injury to himself or herself.
6. That is quite different from the question raised in the present case which is the extent of the responsibility of the driver of the car - which is, as the courts have repeatedly said, effectively a dangerous instrument for causing injury to others - to others; and in the present case the judge clearly concluded, as he found in his judgment in relation to apportionment, that the consequences of the negligence of the driver of the car was very substantially to increase the extent of the injury sustained by the claimant. What the judge said at paragraph 30 was:

"In terms of relative causative potency, the police officer's fault was significantly greater. In the event, the evidence is that the secondary and tertiary injuries (which are the serious injuries) would have been avoided altogether if the police car had been driven at an appropriate speed in the circumstances. Without fault on the claimant's part, there would have been no accident. Without fault on the police officer's part, the injuries would have been limited to less severe injuries to the legs. With fault on both sides, it was the defendant's fault which was causatively more potent in relation to the injuries suffered."

7. Bearing in mind the distinction to which I have referred between this case and the seat-belt case, it seems to me that that was an impeccable way for the judge to approach the question of apportionment in this case. Accordingly it seems to me that there was no error of law discernible in that statement of the issues before him. Whether or not, given that approach, every judge would have reached precisely the same figure in apportionment is another matter. In my judgment, the extent of variation would have been such as merely to have indicated the appropriate spectrum within which judges can be said properly to disagree. There was accordingly, in my view, no qualitative mistake by the judge in relation to apportionment.
8. I would dismiss this application.
9. THE PRESIDENT: I agree. The application for permission to appeal is refused.

Order: Application refused.