Neutral Citation Number: [2007] EWCA Civ 120
Case No: B3/2006/1546
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE 
(QUEEN’S BENCH)
Mr Justice Jack
HQ05X02390
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 21/02/2007
Before :

LORD JUSTICE BUXTON
LORD JUSTICE RIX
and
LORD JUSTICE MOSES
- - - - - - - - - - - - - - - - - - - - -
Between :

	Curry & Anr	Appellant	
	- and -		
	Ehrari	Respondent	

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Mr Nigel Lewers (instructed by Messrs Greenwoods) for the Appellant
Mr William McCormick (instructed by Messrs Michaels & Co) for the Respondent

Hearing date : 8th February 2007
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Moses : 
Background
1.	On 25 June 2001, Somaya Ehrari stepped out from behind a parked car.  One second later she was struck by the nearside mirror of a builder’s truck driven by Martin Curry, the first appellant, an employee of the second appellant.  She suffered severe brain injury.  Jack J concluded that the driver was negligent in failing to see her before the moment of impact.  He also concluded that had he done so he could have taken effective avoiding action.  He concluded that Somaya Ehrari (the claimant) should bear 70% of the responsibility for the accident.  The appellants seek to displace the finding that the driver was 30% to blame.
2.	They challenge both the judge’s conclusion that the driver was negligent and that he had an opportunity to avoid the impact.   His finding that the driver had approximately one second in which to register the presence of the claimant and to take effective avoiding action is central to the appeal.
Facts 
3.	There was no dispute about the facts found by the judge as to the scene of the accident.  The time was about 3.30 p.m.  The claimant had come out of school and walked along Brentford High Street on the north pavement.  At that time of day the High Street was busy with pedestrians and traffic.  It is important to record, for the purposes of the instant appeal, that there were many pedestrians, including school children, both on the pavement and, from time to time, crossing the road through the traffic.  The claimant wanted to cross the road to the other side to catch a bus.  
4.	The width of the road is important.  Next to the pavement is a bus lane which, by the afternoon, was available for parking in marked parking bays.  The adjacent lane, down which eastbound traffic travels, is 3.6 metres wide.  The lane for traffic going the other way, westbound, is 5 metres wide.
5.	Parked in the eastbound bus lane, facing west, against the flow of traffic, was a Volvo estate car with two armchairs, on their backs, on the roof-rack.  Mr Curry, the first appellant, was driving in an easterly direction with his passenger, Mr Worthy, a director of the second appellant, beside him.  As Mr Curry approached the Volvo parked on his nearside the claimant walked into the road from behind the rear offside of the Volvo.  She was probably walking in a diagonal direction from the north to the south pavement in order to reach the bus stop where the bus she wished to catch was stationary.  The judge found that the point of impact was the nearside wing mirror of the truck driven by the appellant.  The wing mirror was broken off but from its height above the ground, 1.25 metres, compared with the height of the claimant, 1.62 metres, the judge inferred that the claimant’s head had struck that wing mirror as she leant forward while trying to stop herself and fend off the truck with her hand on the window.  A handprint on the side window of the truck supported that conclusion.  The body of the truck then struck her right arm and she fell unconscious to the ground.
The Judge’s conclusion that the driver was negligent
6.	In the first ground of appeal, the appellants contend that the judge was wrong to find that Mr Curry was negligent.  The judge’s conclusion was based on the fact, as he admitted, that Mr Curry did not see the claimant before the impact. He did not criticise the driver’s speed, in the region of 20 mph. That speed is, however, a significant element in the calculation of the time for taking avoiding action.  Based on the average walking speed for a 13 year-old girl and the distance the claimant travelled from the line of the Volvo to the point of impact, a distance of between 1.5 and 2 metres, (depending on whether she walked straight out or diagonally), the time from when she emerged, walking rapidly as the judge found, from behind the Volvo to the point of impact would have been about a second.
7.	Although, during the space of that second Mr Curry did not see the claimant, his passenger had seen her.  In a statement to the police on the day of the accident Mr Worthy saw that the claimant was not looking in the direction of the truck, but appeared to be looking either straight ahead or to her left.  She walked, according to Mr Worthy, straight out from behind the Volvo.  He said:-
“I flinched as she walked into the side of our truck.  I knew what was going to happen, it happened so quick, all I heard was the thud.  Martin (Curry) didn’t stand a chance.”
8.	Although the judge recorded that Mr Worthy resiled from this account when he gave evidence, the judge preferred the account he gave in his statement.  But he concluded that Mr Worthy had only seen her, as he put it, “in his peripheral vision a fraction before the impact”.
9.	The finding that Mr. Worthy saw the claimant only a fraction before impact does not avail the driver. He has a responsibility to take reasonable care for the safety of pedestrians, which is not imposed on a mere passenger.  The judge acquitted Mr Curry of any negligence in failing to see the claimant before she emerged from behind the Volvo.  But he continues:-
“He was then able to see her and to all intents she was straight in front of him.  But he never saw her at all.  I have to conclude his attention was momentarily elsewhere.  A driver is not bound to have his attention always fixed in front of him.  Mr Curry, might, for example, have glanced towards Mr McKeown’s approaching lorry.  But that would not explain how he entirely failed to see the claimant as he drove up to her.  Mr Curry was aware of the presence of children, and he had previously had to stop to allow children across.  So he knew that it was an occasion when a careful watch was required.  I conclude that Mr Curry was negligent in failing to see the claimant.”  (Paragraph 8 of the judgment)
10.	It is that conclusion which is challenged.  To my mind, however, it contains two crucial findings of fact which support a conclusion of negligence.  Firstly, as I have already recalled, the driver never saw the claimant at all, notwithstanding that she was in front of him for the space of about one second before the impact.  True it is, as Mr Lewers for the appellants contended, that a driver exercising reasonable care cannot be expected to focus his attention in a number of different directions when driving in a busy high street.  But he can be expected to look ahead towards an obvious source of danger.  This leads me to the second crucial finding.
11.	The judge found that the driver was aware of the presence of children.  He had ample foundation for doing so since the driver said that only two days before the accident he had had to stop, in approximately the same place where the impact had happened, to let some children cross.  A driver, in the exercise of reasonable care, and aware of the presence of the children on a pavement, is under an obligation, as the judge pointed out, to keep a careful watch at that point, all the more so when he  had previously had to stop to let children cross over the road.  
12.	For these reasons, I do not accept the appellants’ contention that to expect Mr Curry, driving in a busy high street, to pay particular attention to pedestrians and children on his nearside, is  to impose too high a standard.  In my view the judge was right, and certainly was entitled, to conclude that, in the light of Mr Curry’s awareness of the presence of children, he was negligent in failing to keep a careful watch.  The judge made no reference to the relevant edition of the Highway Code (1999).  But I note references to the need to look out for children running out from between parked cars in two places in that edition (paragraphs 130 and 183).  I reject the submission that the judge erred in his conclusion that the first appellant was negligent in failing to see the claimant at all, when a careful watch was required.
The Judge’s conclusion that the driver could have avoided the impact
13.	The judge concluded that, travelling as he was at a speed of 20 mph, on the basis of  the Highway Code’s identification of a thinking distance of 6 metres out of a stopping distance of 12 metres, Mr Curry could have taken effective action to avoid an impact of any serious consequence.  He said:-
“If Mr Curry had seen the claimant as she emerged into his path, or immediately thereafter, he could have blown his horn, braked and swerved.  It is impossible to know what would have happened but the likelihood, I consider, is that action by him and reaction to the horn by the claimant would have avoided an impact of any serious consequence.  I must therefore hold Mr Curry in part responsible for the accident and the Claimant’s injuries.”  (paragraph 9 of the judgment)
14.	The judge, with a frankness which served to promote the optimism of the appellants, continued by commenting as follows:-
“In reaching that conclusion I would have had very much in mind that the distance travelled by the claimant from where she became visible to Mr Curry to the impact and the corresponding interval of time were quite short.  If there had been twice as long, my decision would have been an easy one.  If there had been half as long, it is likely that Mr Curry would have been unable to avoid the accident.  So although the claimant succeeds, she does so by a narrow margin.”  (paragraph 10)
The judge fortified that optimism by granting permission to appeal.
15.	The judge’s conclusion, at paragraph 9,  that Mr Curry could have avoided an impact of serious consequence requires some deconstruction.  Within that conclusion are contained two findings. Firstly, it is implicit that the judge concluded that, in the exercise of reasonable care, the driver ought to have taken avoiding action.  Secondly, it is implicit that had he done so that action would have been effective in avoiding an impact.  Both those conclusions are challenged.  I shall deal first with the conclusion that the driver, in the exercise of reasonable care, should have taken avoiding action.
16.	The appellants contend that a driver, faced with the emergency, in a crowded high street with traffic going in both directions, could not be expected to react in time.
17.	Braking would not have avoided the impact.  The distance required to stop was 12 metres. The claimant was only 10 metres away.  The judge appears, in the passage I have cited, to identify the sounding of the horn as the action which Mr Curry should have taken which would have avoided the impact.  But the sounding of the horn requires a reaction by the claimant. On the basis of a thinking distance of 6 metres, or at 20 mph, 0.6 of a second, the horn has to have sounded and the claimant to have reacted in the space of less than half a second.  In my view, the judge was not entitled to conclude that the sounding of the horn would, on the balance of probabilities, have avoided the impact.  I am fortified in that conclusion by the facts found by the judge that the claimant herself had, at the very last minute, seen the truck because she did attempt to stop herself and fend it off.  It was that process of trying to stop herself which caused her to lean forward and her head to be at the same height as the mirror on the truck’s nearside.
18.	But in my judgment there was a basis on which the judge could and did justifiably conclude that the driver should have taken action which would have avoided the impact.  That was by swerving to his offside.  The judge’s reference to the action of swerving was based upon a submission made by Mr McCormick on behalf of the claimant.  He submitted:-
“Mr Curry should have seen Samaya and he should have put himself in a position whereby if she only realised at the last minute what was going to happen she would have probably been able to avoid the collision and could have done that (by Mr Curry) moving further across in the road, there is no suggestion whatever that he could not have done that.  He could have gained at least another three-quarters of a metre, which would have made all the difference, in my submission.  It is certainly clear she would not have hit the wing mirror and could have slowed down.”
19.	The judge must have based his conclusion upon that submission.  In my judgment, he was entitled to do so.  It must be recalled that the width of that part of the carriageway down which the truck was travelling was 3.6 metres wide.  The position of impact shown in a plan annexed to the report of the Chartered Engineer, Dr Searle, engaged on behalf of the appellants, identified the position of the truck as being in the centre of the eastbound carriageway.  Thus Mr Curry did have room to swerve towards his offside without crossing over to the other carriageway.
20.	The appellants pointed out that the high street was busy with traffic going in the opposite direction, including a large three-axle heavy lorry driven by a witness, Mr McKeown, who observed the accident.  It was suggested, on behalf of the appellants that a driver could not have been expected, faced with a sudden unforeseen emergency, to swerve towards the traffic coming towards him on the other side of the road.  But, as Mr McCormick pointed out to the judge, there was room for a swerve to the offside.  The judge was entitled to conclude that a driver could be expected to react by swerving to his offside, when faced with a pedestrian crossing ahead of him.
21.	I turn, secondly, to the conclusion that by swerving the driver could have avoided the impact, could have taken effective avoiding action. Having regard to the position of the claimant and the truck, even a small swerve, at the last moment, could have avoided the impact.  The claimant was struck by the protruding nearside mirror.  She might, as Mr Lewers contended, have then been struck by the bay of the truck which was wider than the cab.  
22.	But this was a matter for the judgment of the judge.  He had to decide, on the primary facts found, whether it was more likely than not that the impact could have been avoided had Mr Curry swerved to his offside.  The judge was, in my view, entitled to conclude that in that short distance and time following the thinking distance of 6 metres an impact “of any serious consequence, would have been avoided”.  Such a short distance might have made all the difference in avoiding contact between the claimant’s head and the nearside mirror.  In those circumstances, in my view, the judge was entitled to conclude that the driver had an opportunity to take effective avoiding action.
23.	The judge’s conclusion is also challenged on the basis that he was not entitled to rely upon the Highway Code’s identification of a thinking distance of 6 metres and a total stopping distance of 12 metres when a driver is travelling at 20 mph.  Mr Lewers referred to a passage in the report of his Chartered Engineer, Dr Searle, which he describes as unchallenged.  In that report Dr Searle, under the rubric of “opportunity to avoid” said:-
“10.2	According to PC Patterson’s measurements, the pickup was parked some 20 m after the Volvo.  It must have first stopped less than that by at least its own length, in order to pull in.  It would therefore seem that Mr Curry, after being alerted by the impact, had stopped no more than 14 m or so.  From 20 mph, with a one-second reaction time, the emergency stopping distance would be just over 14m.”
24.	It was submitted that the judge was not entitled to rely upon the Highway Code but rather, should have accepted the unchallenged evidence that the whole of the period of one second from the time the claimant emerged to the time of impact would have been taken up with what Dr Searle describes as reaction time.  Since that evidence was not challenged, so it was submitted, it was not open to the judge to take a shorter time for thinking, leaving a time for effective avoiding action.
25.	In order to understand why it is that the judge made no reference to this passage in the judgment, I must record the nature of the dispute between the parties before final submissions.  The claimant relied upon an expert in contending that she had walked out from in front of the Volvo, thus giving the driver plenty of time to observe her.  The passage in Dr Searle’s report, which I have set out, was designed to assist in establishing that in fact the claimant had walked out from behind the Volvo.  The final position of the truck after impact confirmed that.  Dr Searle was concerned with rebutting suggestions advanced on behalf of the claimant.  He succeeded, and the judge found that the claimant was, in truth, emerging from behind the Volvo.  The passage upon which the appellants  now rely was not directed to whether the accident could have been avoided, notwithstanding that the claimant was emerging from behind the Volvo.  In those circumstances it is not surprising that the judge made no reference to it in his final conclusions.
26.	Now that we have seen the transcript of the submissions on behalf of the claimant, I am satisfied that the judge was entitled to rely upon the Highway Code with which he was furnished during those submissions.  If the Defendants were to resist the Highway Code identification of thinking and stopping distance it was incumbent upon them, through their expert, to highlight the distinction and set out the basis upon which it was contended that the Highway Code was in error.  In my view the judge was entitled to base his conclusions as to whether the driver could have taken effective avoiding action upon the distances for thinking and stopping given by the Highway Code.
27.	For those reasons I conclude that the judge was entitled to find that Mr Curry was negligent and that he had an opportunity to take effective avoiding action by swerving to his offside away from the claimant.
28.	In reaching that conclusion I have referred to the entitlement of the judge to reach his conclusions but I have avoided any discussion as to the principles to be applied by this court when considering whether to over-turn the conclusions of a judge.  There is now ample authority in Assicurazioni Generali Spa v Arab Insurance Group (B.S.C.) [2002] EWCA Civ 1642 [2003] 1 WLR 577 per Ward LJ, in Biogen Inc. v Medeva Plc [1997] RPC 1, per Lord Hoffmann at page 45 and Designers Guild Ltd v Russell Williams (Textiles) Ltd [2000] 1 WLR 2416 HL per Lord Scott of Foscote at page 2435 e, as to the standard which this court should apply in reviewing the trial judge’s decision.  Since I propose upholding the trial judge’s conclusion both as to negligence and as to the opportunity for effective avoiding action, I do not believe this is an occasion which merits re-iteration of  the reluctance  of this court to interfere with the evaluation of a judge, both as to negligence and an opportunity to take effective avoiding action.  I would dismiss this appeal. 
Lord Justice Rix:
29.	I agree.
Lord Justice Buxton:
30.	I also agree.