England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BOW COUNTY COURT
(MR RECORDER STEYNOR)

		Royal Courts of Justice Strand, London, WC2A 2LL
		1st December 2008

Lord Justice Rix:

1. On 6 April 2004 the appellant, Mr Bajram Qamili, was crossing Cricklewood Broadway during the afternoon on a dry day when he was involved in a collision with a van being driven by the first respondent, Mr Frederick Holt, who was in the employment of the second respondent, Daikin Air Conditioning UK West Ltd. As a result of that road traffic accident, Mr Qamili suffered serious injuries resulting in agreed damages, if damages are appropriate, of £37,500. The question at trial was one of primary liability and contributory negligence.
2. This appeal, on behalf of Mr Qamili, from the full and careful judgment of Mr Recorder Steynor, given on 19 March 2008 in the Bow County Court, is founded on two grounds of appeal as follows:

"(1) The learned Recorder misdirected himself at law in holding that the First Respondent was under no duty to allow for the possibility that a pedestrian might emerge from his offside

(2) The learned Recorder erred in both law and fact in his analysis of causation, which was in any event predicated upon an incorrect finding as to the relevant duty."

3. The circumstances of the accident, as tried and as ultimately found by the learned Recorder, are essentially as follows. Mr Qamili had been meeting two friends of his that afternoon, a Mr Gorani and a Mr Rahmani, at a coffee bar on the west side of Cricklewood Broadway. The accident happened almost immediately after Mr Qamili bade farewell to his two friends and they left him walking in a northerly direction up the pavement of Cricklewood Broadway away from him. They gave evidence in his support at the trial, and I shall refer to that in a moment.
4. Cricklewood Broadway is a busy main thoroughfare, part of the Edgware Road leading northwards out of central London. In the part in which the accident occurred, there are shops and thus pedestrians. The road itself has an ample carriageway in both directions, not separated by any form of partition or central islands at the crown of the road, but the amplitude of the carriageway in both directions is, effectively, narrowed for traffic passing along it by the insertion on the inside of each carriageway of a bus lane in which only buses or other possibly permitted traffic can proceed. So the main traffic borne on this road proceeds up the outside lane of each carriageway. The judge found that in these circumstances there was very little room between the traffic that passed in either direction.
5. Mr Qamili, having said goodbye to his friends, then set off to cross the road over towards a bus stop on the other side of the road. He was minded to take a bus at the bus stop but there was no bus there. It was not a case where he was rushing to catch a bus. Cricklewood Broadway was busy that afternoon. The traffic in the northerly direction on the carriageway which Mr Qamili had to cross to start with was very congested and was essentially choked. In those circumstances a car driver (he did not stop to give his name and he was not a witness at the trial) beckoned Mr Qamili to cross in front of him, which Mr Qamili did. The judge found that, having reached the crown of the road, Mr Qamili walked straight out into the southern-bound carriageway without looking. He walked into the front offside wing of Mr Holt's van, where some scuff marks were found. Mr Holt stopped his van within half a vehicle's length. His evidence was that he was travelling at 10-12 mph in heavy traffic, albeit traffic that was moving more easily than that in the northerly direction. He said that he was keeping a distance of some three metres between him and the vehicle in front. Mr Holt did not see Mr Qamili until the impact had occurred, when he saw him for the first time through his windscreen. I stress the finding is that Mr Qamili walked into the side of Mr Holt's van, not in front of it. The effect of the collision must have been either that Mr Qamili bent over on top of the bonnet so that his face was visible through the windscreen or possibly that he was lifted somewhat in the air into that position. Either because of the recoil of his own movement or because of the final motions of the van before it stopped or possibly because of a combination of those matters, Mr Qamili fell back off the bonnet of the van into the centre of the roadway. Unfortunately, in doing so he hit his head on the road, thereby suffering his injuries. He was attended to lying in the very centre of the road.
6. He could have crossed the road at some traffic lights a short distance, it is suggested, some 50m away. Where he crossed, there were no facilities whatsoever for pedestrians to cross.
7. The real trial, on the evidence before the judge, was as to the circumstances in which those basic facts which I have outlined, and which emerge from the judge's findings, occurred. Thus Mr Qamili's friends, Mr Gorani and Mr Rahmani, gave evidence to the effect that they had seen the accident, that Mr Holt in his van had been speeding and had run down their friend. An eyewitness, Mr Cooper, who was either immediately behind the car which had waved Mr Qamili across the northern carriageway or, at most, one further car space behind that, described Mr Qamili as running and drunk at the time of the accident. The judge rejected both those accounts. He found that Mr Gorani and Mr Rahmani had not witnessed the accident. They were walking off north away from Mr Qamili, who was therefore behind them at the time of the accident, and had only looked round upon hearing the accident occur and seen their friend lying in the carriageway. Similarly the judge also rejected the evidence of Mr Cooper that Mr Qamili had been running or was drunk. It was common ground that Mr Qamili was not drunk and the judge described his deportment as not running but "certainly going at a reasonable speed" -- see paragraph 87 of the judgment.
8. There was ultimately no submission, or if there was it was rejected by the judge, that Mr Holt was travelling at an excessive speed and on this appeal there has been no complaint to that effect by Mr Roy on Mr Qamili's behalf. The judge essentially accepted Mr Holt's evidence that he was travelling at ten to twelve miles an hour, and indeed the fact that he was travelling at a low speed was supported both by the evidence as to the nature of the traffic that afternoon and by the fact that Mr Holt had stopped within half a vehicle's length.
9. The real issue, ultimately, at trial for the judge to determine -- and an issue that Mr Roy has pressed again this afternoon -- was whether Mr Qamili was there to be seen by Mr Holt for long enough for Mr Holt to have failed in his duty to take care to look out for pedestrians and thus, in time, to take avoiding action by braking or swerving if that could have been achieved.
10. On that issue, the strength of the case made against Mr Holt, at any rate on this appeal, is that during his cross-examination Mr Holt gave evidence to this effect, summarised by the judge at paragraph 52 of his judgment:

"It was put to him that he should have been looking out for pedestrians on both sides of the road and he said in order to see the claimant he would need to have been looking out of his side window. 'I was not looking for a man to cross the road, I disagree with the allegation that I should have been looking out for the pedestrians on that side'"

11. That was the judge's summary of a series of questions and answers that we find now at pages 154 to 155 of the transcript. I will read an extract of that part of the cross-examination:

"MR ROY Sure but let's, let's, if you had happened to look to your right for any reason you could… have seen him as far as you are aware?

MR HOLT: If I was looking for him to the right, yes.

MR ROY: Okay. I am suggesting that you should have been looking to your right and been alive to the possibility of pedestrians moving out, but you would disagree with me then would you?

MR HOLT: On the assumption if a man was coming at 90° that way, I don't know where he came, he was moving that way on me. You would have to be looking at the side window to see a fellow coming-

…

MR ROY: But certainly your suggestion that you would need to look out to your side window to see him that is only correct if you are right up beside him. We are talking about before you get to there, you can see him through your front windscreen if you are looking, can't you?

MR HOLT: No, I disagree because the angle is so close. I am here, he is very close there

MR ROY: Yes, but before he gets there.

MR HOLT: No, I would not see him before he got there. I would not see him before impact.

MR ROY: Well, you would if you had been looking is the point.

MR HOLT: If I was looking for a man to cross the road there, yes.

MR ROY: But you were not, right.

MR HOLT: Not looking for one to dash across the road, no.

…

MR ROY: I am not suggesting you are generally a bad driver I am suggesting that on this occasion you did not pay the attention that you should have been to the possibility of a pedestrian crossing the road. Do you disagree with that?

MR HOLT: I disagree totally.

MR ROY: But we agree that if you had seen him some time beforehand you could have stopped.

MR HOLT: Yes."

12. The effect of that evidence, in my judgment, is that Mr Holt was maintaining - rightly or wrongly - that he was not accepting that Mr Qamili was there to be seen before he had actually seen him or, if you like, a split second before he had actually seen him through the windscreen when he might have been visible but only through the side window of the car at right angles, what was described as 90 degrees, to the direction of the road.
13. On that evidence Mr Roy has sought to build both his formal ground of appeal and what has developed as his informal ground. The latter has been the only one actually argued in court today. His formal ground of appeal was that the judge had been wrong to accept that Mr Holt had no duty at all to be looking out for the possibility of pedestrians emerging from his offside, that is to say from the other side of the road or from the centre of the road. In his informally amended ground argued this afternoon, Mr Roy has said nothing in support of that formal ground, a ground admittedly of law, but has sought to say that the judge wrongly failed to take account of what Mr Roy would submit was a concession that Mr Holt had not been looking out for a pedestrian on his offside whom he would have seen in time to stop if he had been performing his duty.
14. As to that factual scenario, the judge towards the end of his judgment made careful findings. He said that the fact that Mr Qamili was found lying across the central line of the carriageway showed clearly that he had not got very far into the southbound carriageway when the accident occurred and that that meant that:

"There must have been a very short opportunity for Mr Holt to see Mr Qamili before the accident occurred"

15. The judge then distinguished this case from other authorities which had been cited to him, pointing out that in the present case:

"We are in a very different area where there was a very short period of time and a short physical space between the two carriageways."

16. And then at paragraph 86 the judge put further colour on that finding of a very short opportunity and a very short period of time by saying this:

"In my judgment, on the facts Mr Qamili was there for such a short period of time that no amount of care on the part of Mr Holt could have prevented this collision."

17. In coming to that conclusion the judge took account of all the evidence such as Mr Holt's low speed; the fact that it was not possible to say with certainty whether Mr Qamili could have been seen threading his way through the traffic on the opposite side of the road before he reached the crown of the road between the two carriageways; and the fact that it was Mr Qamili who had walked into the side of Mr Holt's car rather than Mr Holt driving into Mr Qamili. In effect the judge had found that, as I said towards the beginning of this judgment, Mr Qamili had continued after crossing the northern carriageway to walk straight out into the southern carriageway without looking to his left. It all happened at the last moment in such a way as to leave Mr Holt no time to do anything or indeed to see Mr Qamili.
18. The judge, having come to this conclusion on the facts, then said that he was reinforced in that conclusion, although he had arrived at it before he went on to make this point, by the evidence of Mr Cooper which had been, straightaway at the scene and thereafter in his evidence at trial, to say that it had been his impression at all those times that Mr Qamili had been at fault and the author of his own misfortune. He had volunteered his name and address to Mr Holt at the time, he had been interviewed some three months later, although his signed statement was not dated until August 2007, more than three years after the accident itself. But at all times his impression and recollection was that it had not been Mr Holt's fault. It was simply that Mr Qamili, most unfortunately, walked out into Mr Holt's car.
19. In these circumstances I do not feel that it is in any way possible for this court to say that the judge erred in finding the facts that he did find on the evidence that was before him. The judge was entitled, well entitled in my judgment, to the conclusions of fact at which he arrived. It was submitted by Mr Roy that a series of cases which he cited in his skeleton argument established the proposition that a complete failure to observe a pedestrian on the part of a driver until the moment of impact was itself highly presumptive of negligence. The court asked Mr Roy for his best example of a case which would support that proposition. His answer was to rely on the decision of this court in Pritchard v Ralph (7 November 2000, unreported) but there is no such expression of that proposition in that case.
20. That was a case of a kind which arises, as is the case before us today, where a collision occurs between a driver and a pedestrian in circumstances where the pedestrian gave the driver very little time to stop or to avoid an accident. Those are always very troublesome cases, and courts are required to look carefully at the facts of those individual cases, to see whether there was some breach of duty on the part of the driver, such as travelling at an excessive speed for the circumstances, and of course, depending upon the busyness of a main thoroughfare, particularly with school children about and such things, that may be a speed which is still well within the speed limit -- even that may be an excessive speed in the circumstances. Or the court is asked to consider whether the driver in those cases was keeping a proper lookout, especially if there were children about or if the driver should have known from the people on the streets or his familiarity with the locality, that children would be about, and other such considerations such as elderly pedestrians. That case, Pritchard v Ralph, was a case where, upon the findings, the driver did not have long to see the pedestrian but did have some time. The trial judge found that, in failing to see the claimant in that case before he did see him, which was too late, the driver had been negligent. The Court of Appeal upheld that holding. It seems to me that that case does not assist us in the present case at all where the judge has come to the opposite conclusion on the facts and, as I have already explained, for reasons that can well be understood.
21. Indeed many of the cases put before us in Mr Roy's bundle of authorities are cases on either side of that difficult issue in that class of case. In none of the cases, so far as I am aware, has this court found it possible to say -- as a purely factual matter -- that the judge was not entitled to the view that he had formed of the facts and the issue of negligence. Just by way of counter-example, in Turner v Arriva North East Limited [2006] EWCA Civ 410 this court upheld the trial judge in finding that there was no negligence in that case where two pedestrians had come out momentarily before the collision from between stationary cars and the judge had found no negligence. It was in that case that this court accepted the submission that it would be a counsel of perfection to say that a driver should concentrate on every aspect of a busy road all the time.
22. So much for the facts of this appeal. I need say very little about the original legal ground of appeal because, in effect, Mr Roy has not pursued it. I remind myself that that ground had been to the effect that the judge had accepted, as a proposition of law, that there was no duty on a driver to look for pedestrians appearing from the offside across a lane of traffic going in the opposite direction. It is no surprise that Mr Roy did not pursue that ground of appeal because a careful consideration of the judge's judgment shows that the judge accepted no such proposition of law. It may be that Mr Roy had had to formulate his grounds of appeal before he had a transcript of the judgment. The judge plainly accepted, for instance at paragraph 71 of his judgment, that a driver must take care to be aware of pedestrians on the road. It was simply a matter of observation that in this case Mr Qamili had unfortunately arrived, having walked through a line of traffic on the other side of the road, at the crown of the road and into Mr Holt's car at a moment too late for Mr Holt to see him. The judge took account of Mr Roy's reliance on passages in the Highway Code which emphasise the importance of having an eye out for pedestrians, in particular, of course, children and other vulnerable pedestrians such as elderly people. The judge had all that in mind. Nevertheless ultimately the relevance of those matters depends upon the particular facts of a particular case.
23. Mr Roy's second ground of appeal related to causation but he has not pressed that. Either he was right on his informal first ground of appeal dealing with the essential facts of the accident or he failed. The judge was, in my judgment, entitled to say for all the reasons which I have sought to set out above, that Mr Holt had not failed in his duty and had not caused the accident. This was one of those unfortunate cases where the court must, as it does, have great sympathy for Mr Qamili, the victim of a most unfortunate accident, but where the court is not able to say that the trial judge erred either in law or in fact in his disposal of the issues at trial.
24. I would therefore dismiss this appeal.

Lord Justice Toulson:

25. I agree.

Lord Justice Rimer:

26. I also agree.

Order: Appeal dismissed.