England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SWANSEA COUNTY COURT
(HIS HONOUR JUDGE VOSPER QC)

		Cardiff Civil Justice Centre
		16th July 2008

Lord Justice Richards:

1. On 21 January 2000 Emily Howell-Williams, then aged 5, had been at school at Eglwyswrw in Dyfed. After school she was due to be looked after by a child minder, Mrs Christine Phillips, who lived about three miles away at Brynberian on the B4329 road which runs between Haverfordwest and Crosswell. Emily and a number of other children travelled from school in a minibus operated by Richards Brothers, driven by a relief driver, Mr Martyn Rose. The bus stopped on the opposite side of the road from Mrs Phillips's house. Emily got out and ran across the road. She was struck by a motor car driven by Mrs Lesley Wood and sustained serious injuries.
2. Emily, acting by her mother and litigation friend, subsequently brought a claim in negligence against the various parties involved. The first defendant was the operator of the bus, Richards Brothers. The second defendant was the motorist, Mrs Wood. The third defendant was the child minder, Mrs Phillips. After a trial in Swansea County Court in December 2007, HHJ Vosper QC made findings of liability against the first defendant and the second defendant. He apportioned liability between them on the basis of two thirds against the first defendant and one third against the second defendant. The claim against the third defendant was dismissed.
3. The second defendant, Mrs Wood, now appeals against the judge's order with permission granted by Hughes LJ. The case advanced is that she should not have been found liable at all; alternatively that liability should have been apportioned on the basis that overwhelming responsibility lay with the first defendant and that Mrs Wood was no more than 10 per cent responsible. There is in addition a cross appeal by the first defendant contending for a 50/50 apportionment of responsibility.
4. With that introduction I turn to the judge's findings in greater detail. Emily travelled from school in the bus with her sister, Sadie, then aged 8, Mrs Phillips's daughter Malley, then aged 10, and a boy called Jamie, then aged 7, who was also being cared for by Mrs Phillips. The house in which Mrs Phillips lived was on the off side of the road if one was coming from the direction of the school. The usual driver of the bus, a Mr Thomas, had established a routine by which he stopped the bus on the off side of the road directly outside the gate to Mrs Phillips's house. The children would get out of the bus by the rear door and go straight through a gate into the walled front garden of the house. The judge found that Mr Thomas had driven Emily and Sadie to the house on six previous occasions in January 2000 before the date of the accident.
5. On the day of the accident itself, however, the bus was being driven by Mr Rose, who as I have said was a relief driver. The only relevant previous occasion when he had driven the bus on that route was a few days before. That was an occasion when neither Emily nor Sadie had been on board. Unlike Mr Thomas, Mr Rose stopped the bus on the near side of the road, opposite the house, so that the children had to cross the road to get to the house. The judge found that the bus was stopped wholly on the tarmacadam surface of the road; that is, in the carriageway of the road rather than partly on the verge.
6. There was some doubt about who got out of which door but the judge's findings were that Malley and Jamie left by the near side door of the bus and that Malley then opened the rear door from the outside. Emily and Sadie then got out of the rear door. That was the door used by Emily on every other occasion when she had been driven to the house. The reason for Mr Thomas's practice of stopping on the off side of the road was to permit the children to get out by the rear door and go straight through the gate into the garden. Mr Rose, however, had no knowledge of that practice. Mr Rose gave evidence that he instructed the children to get out of the nearside door, but the judge did not accept that evidence. The judge considered it highly unlikely that Mr Rose made any reference to the door through which the children could leave the bus.
7. What precisely the other children did when they got out of the bus is not entirely clear. It seems that Sadie and Jamie went towards a field on the nearside where some horses were grazing; that is, they moved away from the road. Malley's evidence was that having let Emily out she told Emily to take her hand and held her hand out for Emily to take it, but Malley herself was looking at the time at Jamie. What was undisputed was that Emily tried to cross the road and in the course of doing so was struck by a car driven by Mrs Wood. The impact of the car was on the front nearside, very close to the nearside wing and therefore close to the kerb outside Mrs Phillips' house. I will come to the precise measurements in a moment. The force of the impact propelled Emily towards and possibly into the garden wall or gate of the house.
8. I should mention that Mrs Phillips had seen the bus arrive and had seen Malley standing at the rear of the bus holding the back door of it open, but had not come out of the house by the time of the accident.
9. Doing the best he could in relation to inconsistent and confused evidence by Mr Rose the driver, the judge found that Mr Rose had seen Mrs Wood's car approaching. When he saw it he had time to tell the children to remain on the bus; he knew at that time that Mrs Phillips was not yet at the door of her house, let alone on the nearside of the road ready to escort the children across the road. If he issued a warning to the children, a matter of some doubt, it was a warning to stay on the nearside until after the car had passed and after he had driven away in the bus. Mr Rose contemplated driving off in the bus before Mrs Phillips had crossed the road to take charge of the children.
10. Against that background, and concentrating first on the position of the first defendant, the judge found that the causes of the accident were these. First, the decision by Mr Rose to stop on the nearside of the road. Secondly, Mr Rose's failure to keep the children on the bus until Mrs Phillips had crossed the road: he knew she was in the house and expected her to approach the imminently. Thirdly, Mr Rose's failure to take those steps when he saw that Mrs Wood's car was approaching. In summary, Mr Rose was at fault in all those respects and in depositing small children unsupervised on the edge of the road which he knew they would have to cross in those circumstances. The judge said that Mr Rose did in fact actually foresee the risk of an accident of the sort which occurred yet on the judge's findings he nevertheless took that risk.
11. A further cause of the accident was the departure from the practice by Mr Thomas of stopping the bus on the off side of the road. The judge found that Mr Thomas's practice was the safer practice even though it was in fact contrary to the council's Code of Practice for school transport. Moreover the danger was increased by the very fact that there was a change from the procedure to which Emily was accustomed. It was a legitimate inference that she simply acted as she had on each of the six previous occasions on which she had been taken to Mrs Phillips's house: having left the bus by the rear door, she simply made straight for the gate. The first defendant should have ensured that Mr Rose as a relief driver knew of Mr Thomas's practice.
12. Accordingly, the judge found the first defendant liable both on the basis of vicarious liability for the negligence of Mr Rose and for its failure to ensure that Mr Rose was given sufficient instruction about the practice of the usual driver so as to eliminate the risk which eventuated.
13. That brought the judge to the position of the second defendant, Mrs Wood. The judge held that the duty of a driver when approaching a stationary school bus is first to keep a lookout, to see that it is a school bus; then to modify, if necessary, her driving; and lastly to be vigilant for any child stepping out into or running into the road.
14. He thought it unlikely that Mrs Wood in fact realised that there was a school bus, but because of the evidence of children alighting from the bus and because of a pictogram on the bus which identified it as a school bus, the judge held that she should have realised that it was a school bus. He accepted as the best evidence available to him Mrs Wood's own assessment of her speed at just under 40 miles per hour. In his judgment that was too fast a speed at which to pass the bus. The road was a downhill gradient from the direction of Mrs Wood's approach, and was 5 or 5.5 metres wide. The bus was stopped in the road itself and the bus was 2 metres wide, so the bus extended out to about half a metre from the central white line of the road. It obscured anyone standing behind it. The gap through which Mrs Wood had to drive was relatively narrow. Mrs Phillips's house was plainly visible on the opposite side of the road and the risk of a child crossing unexpectedly was high. If that occurred, the opportunity of an approaching driver to avoid a collision was very limited. In those circumstances the judge took the view that a safe speed was "very much less than just under 40 miles per hour".
15. There was no evidence that Mrs Wood had in fact adjusted her speed. The judge found that either she failed to realise that this was a school bus and did not adjust her speed because she thought she had no reason to do so, or that having appreciated that it was a school bus she simply failed to do anything despite recognising the risks inherent in the situation and the need to adjust her driving.
16. That brought the judge to the issue of causation as it related to Mrs Wood. He dealt with it in these terms at paragraphs 85 to 88:

"85. If she had driven at a slower speed, could she have avoided the collision? My finding is that she should have reduced her speed to such an extent that she should have been able to avoid the collision, but let me deal with the evidence relating to this, and in particular the expert evidence. It is agreed that a 5 year old girl is capable of running from a standing start at about 2.5 metres per second over a 5 metre distance. If it is not a standing start then her speed increases. The experts have calculated the time it would have taken Emily to emerge from behind the bus and reach the point about 0.7 or 0.8 metre from the kerb outside the house, which is where they calculated that the impact would have occurred if the second defendant was travelling in the centre of her lane. That is based upon impact damage to the second defendant's car, which is about 0.3 metre from its nearside, just about the position of the nearside headlight.

86. However, these calculations assume that Emily ran straight across the road. That is not what she did. The only direct evidence of what she did comes from the second defendant who said in her statement:

'Suddenly a young girl ran from behind the rear of the minibus and directly into my path. I braked hard. She seemed to hesitate for a fraction of a second in front of my car before continuing forward. Despite continuously braking hard I could not avoid colliding with her.'

87. How long that hesitation was and how it might affect any calculation of Emily's speed or the time available to the second defendant is uncertain. It has not been addressed, and I assume cannot be addressed on any scientific basis. But it is part of the evidence. It is the only evidence of any witness who saw Emily run. I cannot ignore it in coming to a conclusion about whether, if the second defendant had been driving at a slower speed, a collision might have been avoided.

88. It seems to me to be a proper inference to draw that Emily hesitated because she became aware of the presence of the second defendant's car and then made a decision to try to run for safety to the kerb outside the house. She failed by only 0.3 metre. Again, the overwhelming inference, it seems to me, is that if the second defendant had been driving more slowly then the collision in this case would have been avoided."

17. The judge went on to hold that Mrs Wood's failure to reduce her speed very considerably for the short distance necessary to pass the stationary bus and to keep a careful look out to her offside for any child running out amounted to negligence which contributed to the accident.
18. On the question of apportionment between the first and second defendants, the judge was satisfied that the greater share of blameworthiness for the accident lay with Mr Rose and the first defendant: they were responsible for depositing Emily in a position of danger; they could have taken steps to protect her as Mr Thomas did when he was the driver of the mini bus. The second defendant, Mrs Wood, was at fault in failing to adjust her driving when she came upon the bus, but she came upon a situation which had already been created and which she did not herself create. That was the reasoning that lead him to apportion liability as to two thirds against the first defendant and one third against the second defendant.
19. I come to the second defendant's appeal on liability. There is no appeal against the judge's findings that Mrs Wood approached the bus at a speed just under 40 miles per hour, that she knew or ought to have known that this was a school bus, and that she ought to have slowed down. The fact that no appeal was brought against those matters is a realistic recognition that these matters are not open to successful challenge.
20. The appeal concerns essentially the issue of causation. Mr Matthews submits that the judge was wrong to find that if Mrs Wood had been travelling at a lower speed there would have been time for Emily to get across the road without being struck. It is said that the judge's reasoning was flawed and that this resulted from his ruling that a part of the evidence of the two accident reconstruction experts did not amount to evidence of an expert nature and should not be admitted in evidence. The judge embarked upon an exercise of reconstruction by reference to distance and time that the first defendant's counsel had avoided because of the potential dangers of such an exercise. It is said that the error in the judge's reasoning would have been apparent had he permitted the expert evidence in question to be given or had subjected his own reasoning to scrutiny by the experts. Although there are separate grounds of appeal relating to the judge's ruling in respect of the expert evidence, a challenge to that ruling is not pursued as a separate matter since it does not have any independent significance in the appeal. The only question is whether the judge's reasoning was flawed and erroneous in fact or in law as is contended.
21. The argument as to the flaw in his reasoning is directed primarily at paragraphs 85 to 88 of his judgment, which I have quoted. It proceeds as follows. The distance between the offside edge of the bus and the point at which Emily was struck by Mrs Wood's car was only 2.5 metres. The only direct evidence of Emily's movement in the roadway was that given by Mrs Wood herself, that Emily ran from behind the bus directly into her path and that Mrs Wood braked immediately but could not avoid colliding with her (see the passage of Mrs Wood's statement quoted by the judge in paragraph 86 as already set out). If Emily appeared from behind the bus already running, her speed was likely to be 3.5 metres per second or thereabouts. A speed of that order is said to be indicated in the experts' joint statement, in the passage summarised by the judge at paragraph 85 of his judgment, which I have also quoted. Although Mrs Wood said that Emily seemed to hesitate, it was only for a fraction of a second and could not properly be taken to suggest any significant delay in Emily's progress across the road.
22. So it is submitted that Emily was in the road and visible to Mrs Wood only for an extremely short period of time. Even taking full account of the hesitation she could have been in the road and visible for no more than about 1.3 seconds in total. And it is submitted that in that time Mrs Wood would not have been able to brake or take other action so as to avoid a collision even if she had been driving at a very much lower speed. For this purpose Mr Matthews is prepared to accept that a speed of say 20 miles per hour would have been appropriate and falling within the judge's description of a very much lower speed than that at which Mrs Wood was actually driving. Reference is made to the expert evidence about reaction times which was to the effect that even on the basis of the Highway Code reaction time of 0.68 seconds the driver would have had virtually no opportunity to have avoided the child, but in practice reaction times are usually longer, up to 2 seconds.
23. It is said that in those circumstances Mrs Wood could not have brought the car to a halt before the point at which the collision occurred even if she had been driving at a lower speed. In summary, the time available to Emily to cross the road could not have been altered by anything done by Mrs Wood; Emily would have arrived at precisely the same position at precisely the same time, and because the timings would have been precisely the same even if Mrs Wood's speed had been lower, Emily could not have made the additional 0.3 of a metre that was required in order for her to cross the road in safety before the car collided with her.
24. Another strand in Mr Matthews' submission is a legal argument to the effect that the judge fell into error in relation to the legal test for causation. It is said that there are cases where the 'but for' test is satisfied but there is not the necessary connection between a breach of duty and damage so as to give rise to legally relevant causation. An example cited comes from the speech of Lord Walker in Chester v Afshar [2004] UKHL 41; [2005] 1 AC 134 at paragraph 94, where he gives the example of a taxi driver who drives too fast and whose cab is hit by a falling tree injuring the passenger: this is said to have been a matter of sheer coincidence; the driver might equally have avoided the tree by driving too fast and the passenger might have been injured if the driver was observing the speed limit. The point made is that one must distinguish matters of coincidence from matters of legally relevant causation: the purely fortuitous must be distinguished from that which is causally related to the breach of duty and comes within the scope of the duty.
25. Here it is said that the time that Emily set off and the time when she got to the point of collision were unrelated to the speed at which Mrs Wood was driving; on the facts of this case there was no opportunity for Mrs Wood to avoid the collision; and there was no legally relevant causal relationship between the speed at which she was driving and the damage that ensued.
26. Mr Matthews has referred to a number of other authorities, of which Moore v Poyner [1975] RTR 124 and Barlow v Entwistle in 2000 (case no A2/1999/0922) were the main ones to which our attention was drawn.
27. For my part, I find the entire line of argument advanced by Mr Matthews entirely unconvincing. As it seems to me, it is obvious that this accident would have been avoided if Mrs Wood had reduced her speed, as the judge held she ought to have done, to a speed very much lower than one of just under 40 miles per hour, and the matters that lead to that conclusion are in my view legally relevant to the duty and to the breach of that duty, so that her breach of duty can properly be described as a cause of the accident.
28. Of course, the time when Emily ran out from behind the bus was unaffected by the speed of Mrs Wood's car: Emily would have run out at the same moment if Mrs Wood had approached at a much lower speed. But if Mrs Wood had approached at a much lower speed the car would have been considerably further away at the moment when Emily did run out, and Emily would have had more time to get across safely to the other side of the road. In fact Emily needed very little additional time indeed. She was, as I have said, only 0.3 metres away from safety when she was struck. On the figures referred to by Mr Matthews, she therefore needed only an extra fraction of a second to get across safely. Had Mrs Wood approached at a much lower speed, that extra fraction of a second and more would have been available to Emily and there would have been no accident.
29. In the skeleton argument for the first defendant figures were provided to the court, as to which I understand there to be no dispute, to the effect that a car travelling at 40 miles per hour covers about 18 metres per second; whereas a car travelling at 20 miles per hour covers about 9 metres per second. If, therefore, Mrs Wood had slowed her speed to 20 miles per hour, in two seconds at that speed she would have been nearly eighteen metres further back down the road when Emily first emerged. Even if she had carried on from there at the same speed without braking at all, there would have been ample time for Emily to get across; but, in addition, Mrs Wood gave evidence that she did brake hard before the collision occurred.
30. In my judgment, therefore, the judge was fully entitled to draw the inference he did, that if Mrs Wood had been driving more slowly, that is as slowly as she ought to have been driving, the accident would have been avoided. He was right to describe that inference as overwhelming. And if reaction time did not play a part in his reasoning, it did not need to do so.
31. The contention that these matters are in some way legally irrelevant is in my view wholly without foundation. The fact that the accident would have been avoided had Mrs Wood, in compliance with her duty of care, driven at a very much lower speed is legally relevant for the simple reason that the duty was to drive at a very much lower speed and the breach of duty lay in the failure to do so. The accident was plainly not the result of sheer coincidence of the kind referred to by Lord Walker in Chester v Afshar, but was causally related (and directly so related) to the breach of duty and the failure to slow down when Mrs Wood should have done, that is to say when she saw or should have seen the bus.
32. Moore v Poyner related to the scope of duty in the particular circumstances of the case, not to the issue of causation which is directly relevant to the matter that we have to decide; but in any event the judge dealt with Moore v Poyner and correctly distinguished it on the basis that in that case there was nothing to alert the defendant driver to any particular danger, in contrast with the present case where the presence of the school bus was such as should have alerted the second defendant to an obvious danger.
33. For all those reasons I am satisfied that the main ground of appeal advanced by Mr Matthews on behalf of the second defendant should fail. As I have indicated, nothing separate turns on the grounds relating to expert evidence and I think it unnecessary to deal with them.
34. I turn finally to the issue of apportionment. The submission advanced by Mr Matthews is that there should have been a much lower apportionment of liability against Mrs Wood. It is submitted that here there is a series of manifest failures on the part of the first defendant which created a situation of extreme danger which Mrs Wood could not reasonably have anticipated. The driver of the bus could easily have avoided the risk by asking the children to stay on the bus until Mrs Phillips had come out of the house to supervise them across the road. He could also have taken steps to alert Mrs Wood to the presence of the risk which he had created. The nature of the risk was increased by the first defendant's negligence in varying the practice of stopping the bus on the offside so that the children could go straight into Mrs Phillips's garden. The nature and extent of the risk created by the first defendant and its driver have to be balanced against the opportunity for Mrs Wood to avoid the collision. She was travelling, it is said, at a modest speed, she reacted promptly and she brought her vehicle to a halt very close to where the collision occurred. In all the circumstances, the submission goes, the overwhelming responsibility for the damage in question and for the injury to Emily ought to have been found to rest with the first defendant.
35. For the first defendant, on the other hand, Mr Palmer QC contends that the apportionment made by the judge was unduly generous to Mrs Wood. He seeks an adjustment in favour of the first defendant and submits that the appropriate apportionment would have been 50/50. Matters to which he refers include the fact that Mrs Wood was driving much too fast, that the accident which followed was precisely the kind of accident threatened by her negligence in driving in that way, and the fact that she was driving a car, a potentially lethal instrument; and it is said that there have been cases in which the Court of Appeal has suggested a starting point of 60 per cent responsibility in relation to the driver of a car which collides with pedestrians.
36. For my part, I am not persuaded by either party's submissions on this issue. It seems to me that the judge was very well placed to assess the relative responsibility of the two defendants against whom he had made a finding of liability. A greater fault undoubtedly lay with the first defendant, but the judge made findings against Mrs Wood which involved more fault on her part than, as it seems to me, is acknowledged in the submissions made on her behalf. This was a careful judgment in which the judge looked in detail at the position of each defendant. In my view it was properly open to him to strike the balance between them as he did. I would not interfere with his decision on apportionment.
37. For those reasons I would dismiss the appeal and the cross appeal.

Lord Justice Longmore:

38. This is a sad case, and one can understand why Mrs Wood must feel mortified at what has happened to Emily in the circumstances. But I agree with my Lord that the judgment of HHJ Vosper QC in this case cannot be faulted in any way. I agree therefore that the appeal should be dismissed and also the cross appeal.

Lord Justice Laws:

39. I also agree that the appeal and cross appeal should be dismissed for the reasons given by my Lord, Richards LJ.

Order: Appeal dismissed