Neutral Citation Number: [2011] EWCA Civ 829
Case No: B3/2010/2100
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM OLDHAM COUNTY COURT
HIS HONOUR JUDGE ARMITAGE QC
90L01054
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 19/07/2011
Before:

LORD JUSTICE RIX
LORD JUSTICE LLOYD
and
DAME JANET SMITH
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Between:

	O’Connor	Appellant	
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	Stuttard	Respondent	

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Mr Terence Rigby (instructed by Mellor Hargreaves Solicitors) for the Appellant
Mr Julian Picton QC (instructed by Greenwood Solicitors) for the Respondent

Hearing dates : Tuesday 28th June 2011
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Judgment

Dame Janet Smith: 
Introduction

1.	This is an appeal from the order of HHJ Armitage QC sitting in the Manchester County Court on 6 August 2010, when he dismissed the claimant’s action for damages arising from a road traffic accident on 28 April 2001. Permission to appeal was granted by Pitchford LJ.  
The facts 
2.	The accident took place in Clay Street, Oldham.  Clay Street is a fairly quiet street some distance from a main road.  On entering Clay Street, from Lee Street, the first impression is that it is a cul de sac about 50 metres long with an industrial building blocking off the far end. In fact, towards the far end, there are turnings off to the right into a street of terraced houses and its attendant back street.  Towards the far end of Clay Street, on the left, there is a gateway into a car park which serves the industrial premises at the end.  On entering Clay Street, there is a wall on the left side which runs for about half the length of the street.  There is a pavement on both sides of the street. 
3.	Mr Colin Stuttard, the defendant, worked for one of the businesses which occupied the industrial premises. He was very familiar with the street and usually parked his car in the car park to which I have referred.  Being familiar with the street, he was well aware that local children used the street as a play ground.   
4.	At the time of the accident in 2001, the claimant was just 9 years old.  On the day of the accident, he was playing with a group of friends of a similar age. The game, which was called ‘walli’, entailed kicking a football against a wall. The object of the game appears to have been to keep the ball off the ground for as long as possible by repeatedly kicking or possibly heading it against the wall.  If the ball touched the ground, another round of the game would begin.     
5.	The only two witnesses to give evidence were the claimant and the defendant. The reliability of their evidence was to some extent affected by the passage of time between the accident and the hearing.  Proceedings were begun in 2009, eight years after the accident, although the claimant was still a minor and the limitation period had not yet begun to run.  He gained his majority soon afterwards and took over the action. However, nine years had elapsed between the accident and the hearing. Although there were some areas of factual dispute which the judge had to resolve, the basic facts were not in contention and it is clear that the judge considered that both witnesses were genuinely doing their best to recall the event.  
6.	On the judge’s findings, the accident happened in this way.  The defendant  was returning to his place of work after lunch and was intending to park his car in the car park at the far end of Clay Street.  He drove his car into Clay Street, quite slowly, probably at about 10 mph and in a low gear.  He saw a group of young children playing on the right hand side of the road.  He therefore slowed further and positioned his car very close to the left side of the road; the judge was to describe his position as ‘abnormally close’ to the left hand kerb.  As he was doing this, the claimant ran across the road in front of him from right to left, chasing a ball.  The judge found that the claimant crossed over about 15 metres from the entrance to the road.  The claimant denied that he had seen the car approaching but the judge found that he must have done and there is no appeal from that finding.  The claimant reached the left pavement and continued to play with the ball.  The defendant saw him kick the ball against the wall again while on that pavement.  He was not looking towards the car but was concentrating on the movement of the ball.  The claimant said (and the judge accepted) that he expected to be able to continue the game without leaving the pavement.  However, in order to control the ball, he moved backwards to the very edge of the pavement, so much so that the heel of his left foot overhung the edge of the kerb.  He said that he did not step into the road.  The defendant thought that he had stepped into the road, although only by one pace. The judge did not resolve that issue of fact, saying that it did not make any difference.  The defendant, thinking that the claimant would not leave the pavement continued his way forward, very close to the kerb.  He must have passed the claimant at the moment when his foot was either protruding over the edge of the kerb or was just in the road.  The car struck the back of the claimant’s foot and caused him quite serious injury including a fracture of the lower ends of both the tibia and fibula. The car stopped although there was a dispute as to how far it travelled after the impact.  The claimant said that the car travelled its full length past him; he could see the rear number plate as he was sitting injured on the pavement. The defendant said that he travelled less than half a car’s length after the accident. He says that the claimant was by his passenger door.  The judge did not resolve this dispute.  
The judgment 
7.	After making the findings of fact set out above, the judge first considered the actions of the claimant.  This was unusual in that it was the defendant’s actions which were primarily under scrutiny; the claimant’s conduct would only require assessment if it became relevant to consider contributory negligence.  However, that is what the judge did and no criticism was made of him.  The judge held that, bearing in mind that he was nine years old at the time, it was not negligent for the claimant to play in this ‘relatively quiet’ street.  Nor was it negligent for him to have carried on kicking the ball against the wall when he knew that a car had turned into the street.  He observed that, in an adult, that would have been folly because an adult should reasonably foresee that there was a risk that he might fail to control the ball and it might go into the road in front of the approaching vehicle.  But the claimant was only nine and it was not negligent for him to carry on playing or to adjust his position backwards in his attempt to control the ball.  In short, the claimant himself was not negligent, even though his actions would have been negligent in an adult.  
8.	The judge then considered the defendant’s actions.  He prefaced his consideration with a citation from Moore v Pointer [1975] RTR where Buckley LJ said: 
“..I think one can formulate the appropriate test in the present case in these terms: would it have been apparent to a reasonable man, armed with common sense and experience of the way pedestrians, particularly children, are likely to behave in the circumstances such as were known to the defendant to exist in the present case, that there was a possibility of danger emerging, to avoid which you should slow down or sound his horn or both.”
9.	The judge also reminded himself that a driver’s duty is to take reasonable care for a pedestrian’s safety, not to guarantee his safety. The judge then considered the submission made by Mr Terence Rigby, counsel for the claimant, that the defendant should have ensured that the children (both on the right and left) were aware of his presence. He should have sounded his horn. The judge rejected that submission on the basis that the claimant probably was aware of the advancing car and that the defendant’s belief that the claimant had seen him was reasonable.  Mr Rigby also submitted that, as the situation had developed, the defendant should have stopped. The judge rejected that as a counsel of perfection going well beyond the duty to take reasonable care.  The judge accepted that there was a risk that a child with a ball who had just crossed the road in one direction might cross it again.  The defendant had, reasonably and correctly, assessed that the claimant was not going to do that.  Therefore it was reasonable for him continue on his course at a slow pace.  He concluded with these words:  
“In those circumstances, my conclusion is that it was not negligent to fail to sound the horn or to fail to stop. It was sufficient to proceed slowly, alert to the possibility that the child might turn and start to cross the road again. Stepping backwards off the pavement was, in my judgment, only an extremely remote possibility.”
10.	The judge dismissed the claim.
The appeal to this court
11.	Both of the skeleton arguments and good deal of the oral argument entailed submissions relating to the correct approach for this court to take to findings of fact made by the judge. These submissions were not relevant to the appeal as no finding of primary fact was challenged.  The true nature of Mr Rigby’s submission, on behalf of the appellant, was that the judge had erred in his conclusion that the defendant was not negligent.  That is a matter of judgment.  Of course this court will give due respect to the judge’s conclusion and will not overturn his holding merely because it would, if left to make up its own mind, have reached a different conclusion.  But if this court is of the view that the judge has fallen into error, it will set aside the holding and allow the appeal.  
12.	Further time was taken up in examining various authorities. I do not propose to cite any of them because it does not appear to me that they were helpful.  The judge was right to remind himself that the standard of care owed by a driver to a pedestrian (as to any other road user) is to take such care as is reasonable in the circumstances.  But the circumstances vary so widely that comparisons with other cases are rarely helpful.  
13.	Mr Rigby made two points of substance.  First, he submitted that the judge had failed to take account of the real danger presented by the developing situation. The defendant was driving, albeit slowly, very close to the kerb of a pavement on which a young boy was playing ball. The boy was looking at his ball, not at the approaching car.  The defendant should have appreciated that the way in which events might unfold was wholly unpredictable. He should have realised that there was a risk that the claimant might act in a foolish way and that this was not limited to the risk that he would decide to run back across the road.  Accordingly, the defendant should have either stopped or sounded his horn or both. Instead, he did nothing other than to carry on as before.  
14.	Second, Mr Rigby drew attention to an inconsistency in the judge’s reasoning.  When considering the claimant’s actions, he observed that, for an adult to act as the claimant had done would have been folly because an adult ought to foresee that the ball might go out of control and that it might go into the road in front of the approaching vehicle.  Yet when the judge came to scrutinise the defendant’s actions, he declared that it was reasonable for the defendant to anticipate only the possibility of the boy running back across the road. Stepping back off the pavement (and presumably any other movement) was only a remote possibility.  Mr Rigby submitted that there was an inconsistency between the judge’s two statements. 
15.	Mr Julian Picton QC for the respondent submitted that the judge had been entitled to reach his conclusion on the issue of negligence. He accepted that the duty on a motorist who was, in effect, driving through a playground, was high but submitted that the judge had not misdirected himself in law and that we should not interfere with his conclusion.
16.	In my judgment, there is force in Mr Rigby’s submissions.  In particular if the judge was right to say (as I think he was) that it would be folly for an adult to carry on kicking a ball on the pavement when there was a car approaching because he should foresee the risk that the ball might go out of control, it is hard to see why the approaching motorist should not foresee exactly the same risk. That risk was not something which only the ball player would appreciate; it was a risk which any reasonable adult would be aware of as a matter of common sense and experience.  Accordingly, in my view, the judgment below contained an inconsistency.  The judge was wrong to say that the possibility that the claimant might step back off the pavement was remote.  In my judgment, the holding that the defendant had taken reasonable care must be set aside.   
17.	I do not consider that there is any need for the case to be remitted for a rehearing. Although the judge did not resolve every difference in the evidence, the parties have been content to accept the facts to the extent that they were found.  It is appropriate for this court to reach its own conclusion.  In my judgment, on the basis of the facts as found, the defendant was negligent. He knew Clay Street well and it was no surprise to him that there were young children playing there.  He was, in effect, driving through a playground. The duty upon him was accordingly high.  The judge accepted that he adjusted his speed when he saw the children and took up a line of travel close to the left kerb. That was sensible as the children were then on his right. However, when the claimant crossed in front of him to the left pavement, his line of travel was going to take him very close indeed to the claimant.  He saw that the claimant was continuing to play with the ball; he kicked it against the wall.  He was not looking towards the defendant.  That created a situation fraught with danger. The movement of the claimant was at that time wholly unpredictable. Balls can be difficult to control and children can do silly things.   In my judgment, it behoved the defendant to ensure that the claimant was aware of his presence and was keeping still before he proceeded. If that meant stopping his car, so be it. I do not think that such would be a counsel of perfection in these circumstances.  He was going only slowly so there would be no difficulty in stopping.  His was the only moving vehicle in the street at the time so there was no pressure upon him to keep traffic moving.   It may be, I cannot say, that it would have been possible for the defendant to ensure that the claimant looked at him and stopped playing by sounding his horn but without actually stopping his car.  But, in these circumstances, the onus was on him, as an adult and as the driver of a car, either to sound his horn or stop or both so as to ensure that the claimant kept still while he proceeded.  This may sound exacting but, in my judgment, it is not an unreasonable burden to place on a motorist who is driving very close to a young child.  
18.	For those reasons, I would allow this appeal and enter judgment for the claimant with damages to be assessed if not agreed.      
Lord Justice Lloyd
19.	I agree. 
Lord Justice Rix
20.	I also agree.