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 SOUTHEND COUNTY COURT
(HIS HONOUR JUDGE YELTON)

		Royal Courts of Justice Strand London, WC2
		16th December 2005

1. LORD JUSTICE PILL: This is an appeal by Miss Sarah Hayfield ("the appellant") against a judgment of His Honour Judge Yelton sitting at the Southend County Court on 26th April 2005. In a claim for damages for personal injuries, the judge made an order in favour of Adam Laurence Puffett, suing by his litigation friend Madie Puffett, ("the respondent") in the respondent's favour on the question of liability. Assessment of damages was deferred.
2. The respondent, then six years old, was seriously injured on 1st October 1999 when struck by a Ford Fiesta motor car driven by the appellant on a road known as Glenmere, in Vange, Essex. The road was a residential cul-de-sac where the appellant and respondent lived. The accident happened at some time after 7.00pm. It was dark. The street lighting was on, the road was dry and the weather good.
3. Children played in the street. As a resident of Glenmere the appellant knew that, and when driving in the opposite direction about ten minutes before the accident she had observed children playing around in the street and had remarked on it to her boyfriend, who was with her in the car.
4. The overall width of the carriageway was about 5.7 metres. There were vehicles parked on either side of the carriageway, which left only a narrow passage, described by the judge as a "tunnel", down the centre of the carriageway for moving traffic. The foreseeable potential for injury was in these circumstances a high one.
5. The respondent ran into the carriageway from the appellant's nearside into the path of the vehicle. It is, of course, a driver's nightmare and also a parent's nightmare that such a thing may happen. The respondent came out from between a parked van and a parked car. There was, the judge found, a substantial gap between the van and the silver car beyond it in the direction of the appellant's travel. The boy's presence on the carriageway would, at first, have been obscured from the appellant by the presence of the van.
6. The impact was with the front nearside of the vehicle and damage was confined to the front nearside corner. The judge found that the respondent ran out unexpectedly from behind the van. The appellant applied her brakes quickly and came to a stop. She reacted promptly to the situation which had occurred. A police officer found a skid mark caused by the motor car 12.9 metres long in the road. It was from the front nearside tyre.
7. In evidence, the appellant claimed that she was driving at 15 to 20 miles per hour. A witness, Mrs Tidbury, heard a loud engine noise and at first thought that the vehicle was "a boy racer". She also expressed the opinion that because children played in the street, the driver was going too fast to be able to react. The appellant was driving in second gear at the time, so that the noise level was higher than it would have been had she been in a higher gear.
8. The judge heard evidence from Mr RB Elliott and Professor M MacKay, both experts in road traffic accident investigation. The judge stated that he did not find the evidence of any particular value because there were so many variables. The judge found, consistently with the expert evidence presented to him, that the appellant was "travelling at about 28 to 30 miles an hour prior to applying her brakes". The judge found that she was travelling too fast in the circumstances. That finding is not challenged, and it amounts to an admission of negligence by the appellant. No allegation of contributory negligence was made, having regard to the age of the child. The challenge in this appeal is to the judge's finding that the excess speed caused the injuries to the respondent. The judge found, at paragraph 11:

"But looking at the matter in the round it seems to me, again on a balance of probabilities, that had she been driving at a safe speed she would not have injured the child because of the obvious reason that the lower the speed, the easier it is to stop. I cannot make specific findings because there is no evidence upon which I can make that finding as to where exactly the child ran out but I can make findings and do and have done on a balance of probabilities after taking into account all the various calculations which I have been given."

9. When asked about a finding as to what a proper speed would have been, in discussions after judgment, the judge added:

"I certainly did not find what a proper speed would be. I do not think that it is necessary for me to find that. I bear in mind what the Court of Appeal have recently said, which is that judgment should be as short as possible and to confine ourselves to the material facts. But I found on a balance of probabilities - I may not have expressed it exactly that way because, obviously, you do not craft every word in an extempore judgment - but I found that had your client been travelling at whatever a proper speed was, an accident would not have occurred. I find that on a balance of probabilities bearing in mind all the circumstances of the case."

10. There is no doubt that, if driving at a lower speed, the driver has a better opportunity of reacting to an unexpected movement on to the road and thereby avoiding a collision. On the other hand, there will be cases where the movement into the road is so proximate to the vehicle's approach that, even at a lower speed, the driver will not be able to avoid a collision. As to whether a lower speed would have permitted a driver to avoid a collision is for the judge's assessment on the evidence. The judge did not spell out the expert evidence, but said that he had taken into account all the various calculations.
11. The first submission of Mr Howarth, who appears for the appellant and who also appeared below, is that the appellant had no opportunity to avoid the impact. He refers to her evidence that the respondent appeared suddenly and she had no opportunity to react properly. It is understandable that a driver -- and no doubt is expressed about the good faith of the appellant -- might have that impression. However, her account is quite inconsistent with the agreed expert evidence, and in particular with a plan prepared by Mr Elliott which was in evidence and was not in dispute. That plan accompanies calculations made by Mr Elliott.
12. It is clear from the point at which the skid mark began that the respondent must have come into the view of the appellant a considerable distance back along the road. Upon the judge's finding of a speed of 28 to 30 miles per hour, the calculation made by Mr Elliott is that for the vehicle to skid to a stop from 28 miles per hour requires 25.33 metres, and at 30 miles per hour it requires 28.54 metres. In the first case the time taken is 3.1 seconds and in the second case 3.24 seconds.
13. The second point made by Mr Howarth is that had the appellant been driving at a slower speed, she would have been closer to the point of impact when the appellant emerged and that a collision would still have occurred. I regret I do not begin to understand that point. The starting point, it seems to me, for any assessment of time and distance is where the car was on the judge's finding when the respondent came into view. I see no possible justification for assuming that, had the appellant been driving slower she would have been nearer to the eventual point of impact than she in fact was. That point I do not think was persisted in once it was explored by members of the court with Mr Howarth.
14. The third submission is that, on the evidence, the judge could only make a finding in the defendant's favour on causation. There was no evidence as to where in the gap between the van and the silver motor car the respondent had emerged on to the carriageway. The nearer to the van the less would have been the opportunity to take preventative action. Secondly, the judge did not find and was not prepared to find what a non-negligent speed would in the circumstances have been. In those circumstances, it is submitted the burden of proof on causation could not be satisfied.
15. Further, in relation to the judge's comments following the main judgment, it is submitted that the judge was not entitled to say, as he did, that:

"... had your client been travelling at whatever a proper speed was, an accident would not have occurred."

16. That begs the question, it is submitted, of what a proper speed would have been, and whether at such a speed the collision would have been avoided. I do see the danger of a judge unconsciously working back from a finding already made that causation had been established to a statement of appropriate speed, and in a judge declining to make any finding on speed.
17. I have referred, when considering an earlier point, to the material available to the judge as to what was likely to have happened at different speeds. The judge found that for the driver to react and for the vehicle to skid to a stop from 15 miles per hour would have required 10.47 metres. At 20 miles per hour it would have required 15.62 metres. The relevant time in the first case would have been 2.1 seconds and in the second 2.5 seconds. It is common ground that, on the basis of those findings, had the appellant been driving at 15 miles per hour, no collision would have occurred; and driving at 25 miles an hour a collision was bound to occur wherever in the gap between the van and the car the respondent had emerged. At a speed of 20 miles per hour, whether some collision occurred, though its severity has not been the subject of debate before this court, would probably have depended on where in the gap the respondent had emerged. As I have said, the judge said that he had regard to the calculations, though he did not spell them out.
18. We have been referred to two road traffic cases where the question of causation has been in issue. In Wright v Freeway Haulage Ltd, transcript 22nd April 1999, a collision occurred between a heavy lorry and a motor car travelling in the opposite direction. May LJ stated:

"I am not, however, persuaded that the judge was correct to conclude that the speed of this very wide articulated lorry and its load made no causative contribution to the accident. [A finding of excessive speed had been made.] It is a short point. But, in my view, to drive a lorry with a 15 ft 6 ins wide load at or approaching 50 miles per hour on a bend of a single carriageway which was nearly 4 ft narrower than the load was negligent, and the negligence contributed to the accident. Driving more slowly would have enabled Mr Mangan to manoeuvre more carefully and would also have given the oncoming drivers, including but not limited to the plaintiff, a greater opportunity to take any necessary evasive action safely."

19. In Lamoon v Fry [2004] EWCA Civ 591 a collision occurred between a motor car and a cyclist. Again, there was a finding of excessive speed by the motor car. Rix LJ stated, at paragraph 15:

"So far as causation is concerned, I am similarly satisfied that it is impossible to say that the judge was wrong to conclude that the excessive speed was a cause of the collision. I accept Mr Melville-Shreeve's submission that, albeit, as the judge found, the motorist was properly keeping to his side of the road while taking this bend, nevertheless on such a road he had to be aware of the possibility of other users of the road who may be at risk if he drove too fast for those conditions. At a slower speed, alive to that danger, he could well have avoided a collision, even if he could not have stopped within the distance. It was for the judge to assess that matter: he assessed it as probable, and I cannot say he was wrong to do so."

In neither of those cases did this court, or the judge, find it necessary to state what a minimum safe speed would have been.

20. Mr Howarth submits that those cases are distinguishable because several factors were involved in considering the negligent driver's conduct, including the loss of an opportunity to take evasive action. The fact that other factors were involved does not, in my judgment, require the approach in those cases to be distinguished from the appropriate approach in the present case, so as to make it essential that there should be a finding of a minimum safe speed.
21. There has also been reference, at the initiative of the court, to the case of Baker v Market Harborough Industrial Co-operative Society Ltd [1953] 1 WLR 1472. In that case there was a collision in the centre of a road between two vehicles driven in opposite directions. There were two such hearings, the learned trial judges in the two cases taking a different view of the facts and a different approach to what to do when there is no clear evidence to establish which of two parties was negligent.
22. In the course of his judgment, Romer LJ expressed his sympathy for the view of the judge who had found that the cause of the accident was so speculative on the meagre facts available that the plaintiff, who was an innocent third party, had failed to prove her case. Romer LJ, however, came to a different conclusion in the event, accepting the finding of the other judge that blame should be apportioned equally as between the two drivers. Romer LJ stated that a finding to that effect was:

"... the reasonable and probable inference to draw from the facts as found ..."

In my judgment, and with respect, that principle is a sound and relevant one, but any factual comparison between the situation in that case and that in the present case does not assist further.

23. I reach two conclusions upon the submissions made by Mr Howarth. First, in relation to the absence of evidence as to where in the gap the respondent emerged, the judge must make his overall assessment in all the circumstances, and the absence of a finding of fact on one of the variables does not in my judgment debar him from concluding, on a consideration of the evidence as a whole, that causation was established.
24. Secondly, I am not prepared to accept as a proposition of law that where speed is the only finding against a negligent driver, the negligence can only be held to be causative of the accident if the judge finds what a maximum safe speed would have been.
25. In my judgment, there was sufficient material for the judge in this case to make the finding he did. He was entitled on the evidence to find causation proved on a balance of probabilities. He was entitled to take into account the circumstances; the likelihood of children playing in the road; the narrowness of the passage available to the appellant; and, accordingly, the absence of any opportunity to take evasive action, and to conclude, first, that the speed of the appellant was excessive and, secondly, that it was causative of the accident. Moreover, a further factor was present, one to which Mr Elliott in his report refers. Given a lower speed in the vehicle and more time in which to react, the respondent, with that instinct for survival which every human being has, may well have been able to take successful evasive action. That was another factor in the present situation.
26. It follows that, in my judgment, the failure to find a minimum safe speed and the inability of the judge on the evidence to find precisely where it was that the respondent emerged on to the carriageway did not prevent the judge from making the finding he did. Proof is upon a balance of probabilities, that is whether it is more likely than not that on the evidence the excessive speed of the appellant caused the collision. In my judgment, the judge was entitled to find that it did.
27. I only add -- and of course this court is not the fact-finding body -- that on the evidence, very little of which is in dispute, my impression is that in the particular case a finding that 15 miles per hour was a maximum safe speed, which would of course have allowed the appellant to avoid the collision, was a finding the judge was entitled to make had he chosen to do so. I add that because in my judgment his failure to state a speed has not resulted in any injustice on the facts of this case.
28. For the reasons I have given, I would dismiss this appeal.
29. LORD JUSTICE KEENE: I agree. The only real issue in this case is whether the judge was required to make a specific finding as to what speed would have been non-negligent in all the circumstances, before he could properly conclude that there would have been no accident, had the defendant not been negligent. The judge reached that conclusion, but without specifying such a speed.
30. For my part, I am satisfied that no significant distinction can be drawn between this case and that of Lamoon v Fry, to which my Lord has referred. There were a number of variables in both Lamoon and in this case affecting what would have happened at a lower speed. The two cases cannot be validly distinguished merely because there might have been time in Lamoon for some manoeuvring, had a lower speed been adopted. That simply concerns the physical mechanics of a collision or no collision, not any matter of principle.
31. Whether a trial judge specifies a reasonable speed, or instead goes straight to his view on what would have happened without negligence, he is always making a judgment. To some extent specifying a reasonable speed may be artificially precise. In the present case there was undoubtedly evidence that there would have been no accident if the defendant had driven at a reasonable speed. It was certainly open to the judge to arrive at that conclusion. In my view he was entitled to make the finding which he did without determining a precise safe speed.
32. I too would dismiss this appeal.
33. LORD JUSTICE LLOYD: I agree with both judgments.
(Discussion as to costs)
34. LORD JUSTICE PILL: We do note that schedules were not before the court, in case that may bear upon the costs of the assessment, though you are entitled to say that both sides were in the same position.

ORDER: Appeal dismissed with costs, to be the subject of detailed assessment if not agreed.

(Order not part of approved judgment) ______________________________