England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL ( CIVIL DIVISION )
ON APPEAL FROM BIRMINGHAM CIVIL JUSTICE CENTRE
(MR RECORDER RICHARD JONES QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		18th July 2011

Lady Justice Hallett:

1. This is yet another case to come before this court where a trial judge was forced to make factual findings on events which occurred many years before trial; here the gap is an astonishing 18 years.
2. In May 1992 the respondent was just four years of age when he and his mother were struck by a car driven by the appellant, Mr Ian Jenkins. In late 2010 the trial took place before Mr Recorder Richard Jones QC of allegations of negligence against the appellant. By the time of the trial Mr Jenkins, a retired school teacher, was in his seventies. Not surprisingly his memory of the accident was less than perfect. The same could be said for those eyewitnesses who remained to give evidence. Given the trauma, confusion and speed of events establishing what happened was never going to be an easy task. In this case the task was made even harder by the passage of time.
3. The accident occurred at about 9.50 in the morning of 11 May 1992. The appellant was driving his Lada motor car east along the Boleyn Road, Frankley. It was a narrow two single lane road subject to a 30 mile an hour speed limit in a residential area. The weather was dry and visibility was good. Ahead of Mr Jenkins were two bus stops on either side of the road. Ms Slater, the respondent's mother, was with him on the south side of the road, the appellant's offside. She was holding the respondent's hand. She was not sure which bus stop she required. She crossed the road to the north safely but realised she had been on the correct side of the road all along. By this time a bus driven by the late Mr Rowlinson was also driving east along Boleyn Road and had pulled up alongside the bus stop on the northern pavement. The bus Ms Slater wanted was driven by Mr Hope and it was approaching the scene from the east. Ms Slater and the respondent went to re-cross the road. Tragically at that very moment Mr Jenkins had encountered the stationary Rowlinson bus on his nearside and had pulled out to overtake. He collided with Ms Slater and the respondent.
4. Neither party relied upon the respondent, for obvious reasons, or his mother. Her account to the police, which suggested her son had run out in front of the bus, was not served under the Civil Evidence Act. The evidence actually relied upon came from two experts, from Mr Jenkins himself, from Mr Hope, from a Ms McKenzie, who was a passenger on the Rowlinson bus and from a Mr Preston, who was waiting for the bus on the south side of the road. He was too ill to attend the trial but reliance was placed upon his witness statement.
5. Mr Jenkins had given his first account to the police on the day of the accident, Mr Preston the next day and Mr Hope the day after that. On 18 December 1992 Mr Preston prepared a second statement for the appellant's insurers upon which the appellant relied. This statement proffered the opinion that the accident was the fault of Ms Slater. The respondent relied upon the original statement in which Mr Preston described Ms Slater as walking at normal speed as she stepped straight into the road. Mr Hope's statement for these proceedings was made in November 2008 the year the claim form was issued and the appellant's in August 2009.
6. The appellant's case in a nutshell was that Ms Slater and the respondent ran into the road from behind the Rowlinson bus, leaving him with no chance of avoiding them. The respondent's case was that the appellant was driving too fast in the circumstances, failed to keep a proper lookout and failed to exercise sufficient care. It is clear from the judgment that the judge derived little help from the eyewitnesses as to the speed at which the appellant was driving. The experts gained some limited assistance from measurements taken at the scene of the relative positions of the vehicles at rest after the accident. However, each and every calculation they made was subject to a number of variables and the calculations continued into the trial itself
7. The Recorder made the following findings of fact: i) The appellant's likely speed as he overtook the bus was 27 miles per hour;. ii) The respondent and his mother walked briskly into Boleyn Road. iii) Their travel time was 1.2 seconds. iv) They travelled two metres from the offside of the bus. v) The appellant's likely reaction time was 0.75 seconds. vi) Given the absence of skid marks the likely braking force was 0.5g. vii) The appellant's car travelled 14 to 15 metres beyond the point of impact before coming to a halt.
8. Of those findings Mr Glyn Edwards for the appellant initially complained about the finding in relation to the appellant's speed. However, he does not have permission to argue that ground and accordingly I shall focus on the grounds upon which he was given permission by Smith LJ. Essentially they go to the question of causation.
9. From the immediate aftermath of the accident, up to and including the trial itself the appellant's case was that Ms Slater ran out into the road with the respondent. Mr Edwards launched a determined challenge, therefore, upon the judge's clear factual finding that the respondent and his mother walked out albeit "at a brisk pace". Prompted by Mr Grice for the respondent Mr Edwards accepted that the judge actually found as follows at paragraph 35:

"I do think that the Claimant's mother walked out intent on Mr Hope's 'bus and without looking to her right and at a pace which I would describe as normal but brisk."

10. At paragraph 36 the Recorder said this:

"It is significant also to my mind that he has no recollection whatsoever of seeing Sam at all [there referring to the appellant's evidence]. I, therefore, conclude that the Claimant and his mother were walking at a normal to brisk pace. "

11. The significance of this finding is the impact it might have on travel times. The experts calculated that if Ms Slater was running, ie travelling at the average speed of a woman of her age jogging, it would take 0.6 seconds to travel the two metres to the impact point, whereas if she travelled at the average walking speed of a woman of her age it would take 1.2 seconds. There were no figures available for her walking at a brisk pace and the experts were not asked about the travel time. Mr Edwards suggested that presumably the travel time would have been less than 1.2 seconds and more than 0.6 seconds. He argued the word "brisk" even "brisk to normal" must import something quicker than the average walking time.
12. The difference between the timings, Mr Edwards insisted, was crucial to the outcome of the case. If Ms Slater walked briskly or if she ran, on proper analysis, the collision could not have been avoided and therefore the respondent would not have established causation.
13. Mr Edwards complains that the respondent's case that he and his mother simply walked out onto the road was based on little or no evidence. He went further and argued that the evidence pointed all one way. The judge should have found as a fact that the respondent and his mother ran into the road. The respondent did not rely upon the evidence of his mother; given her first account to the police, he could not. His case that he and his mother simply walked into the road was based solely on the first statement by Mr Preston. Over reliance on that statement, Mr Edwards observed, would be to ignore what Mr Preston said in the later statement. At that time he said he could not tell if the Ms Slater was walking or running.
14. Mr Edwards recognised, as he must that, this being a clear finding of fact, he faced a considerable hurdle in persuading the court to overturn it. Nevertheless he submitted that the judge's reasons for making the finding displayed irrationality and/or a desire to make a finding in the respondent's favour in the face of the best evidence available to him.
15. The judge's reasons were as follows. (1) Mr Jenkins only saw Ms Slater for what he described as a split second, which the Recorder felt was insufficient time to assess if she was running or not. 2) He dismissed the statement made by Ms Slater to the police that her son had run round the front of the bus as a statement made by someone who may have good reason, conscious or unconscious, to rewrite history. 3) Mr Preston in his first statement to the police described Ms Slater as walking out at normal speed. 4) A mother would not launch herself and her child into the road in this way. 5) Mr Jenkins had been defensive and less than satisfactory in the way in which he gave his evidence.
16. Mr Edwards claimed that there was no rational basis for the conclusion that Mr Jenkins would not have been able to assess whether Ms Slater was running. Mr Jenkins was the only reliable live evidence as to the manner in which Ms Slater and the respondent emerged. Therefore considerable weight should have been given to what he said. He further criticised the judge for accepting that Mr Preston would have had sufficient time to assess the pace at which the respondent and his mother left the pavement, yet at the same time he found that Mr Jenkins was in no position to make a similar assessment. He also pointed to the fact that Mr Preston, in his statement of December 1992, said that his view of Ms Slater was hidden to a certain extent by the bus. Mr Edwards submitted it was wrong for the Recorder in effect to give more weight to a witness who was not in court than a witness who was and who had been consistent throughout. The other eyewitnesses who did give oral evidence were forced to concede that they might be mistaken about various matters.
17. He submitted there was no rational way of assessing the weight to be given to Mr Preston's evidence and before placing reliance upon his first statement. A rational court would wish to know exactly where Mr Preston was standing, where he was looking and why (as Mr Edwards would have it), he had effectively withdrawn his earlier statement about the speed of the pedestrians.
18. To my mind, reading the Recorder's judgment as a whole, it is plain that he was less than impressed by the appellant's evidence and it was not simply a question of his memory having faded with time. He may have been consistent, but one can be consistently wrong. Mr Jenkins, on any view, was involved in a traumatic incident for which no doubt he did not want to be blamed. He had split seconds to react to events and was in the thick of what happened. By contrast, Mr Preston was an independent bystander. He was the only witness, as Mr Grice pointed out, who was able to see the whole sequence of the movements of the respondent and Ms Slater. His view of the events and of Ms Slater stretched way beyond the split seconds available to the appellant. Given the passage of time it is hardly surprising that Mr Preston told the respondent's insurers months after the event, he could not really say whether Ms Slater was walking or running. The important point to note is that the day after the event he had stated in clear and detailed terms (at the first opportunity):

"I looked across the road to see the lady re-emerge from around the front of the Rowlinson bus. She was walking at a normal speed and was holding the boy's hand in her right hand. She appeared to be looking straight ahead and simply straight into the road."

19. This was important and significant evidence, even if Mr Preston was too ill to attend court. The Recorder was perfectly entitled to have it at the heart of his considerations.
20. To my mind the Recorder was also entitled to ignore the thrust of the evidence of Mr Hope. Mr Hope not only described Ms Slater and the respondent crossing the wrong way immediately prior to the impact in his witness statements. He continued to insist during his oral evidence that they were crossing the wrong way. This must have significantly undermined his evidence in the eyes of the judge. Also he seems to have been describing the impression he had of events rather than a clear recollection.
21. I next turn to Mr Edwards' complaint that the Recorder was wrong and irrational to apply the standards of what an ordinary mother would do in this situation as some kind of objective test. Mr Edwards pointed to the fact that on any view Mr Preston says that Ms Slater walked or ran with her child straight into the path of Mr Jenkins' car. Ms Slater was not called upon to give evidence. She herself had told the police she had run out into the road albeit to chase after her son. There was no basis for finding, therefore, that, as a mother, she would not have launched herself and her child into the road.
22. Mr Edwards conceded during the course of argument that the Recorder was obliged to ignore the statement made by Ms Slater to the police for two significant reasons: first, neither side relied upon the statement or had served the statement by way of Civil Evidence Act notices and second there may have been very good reason why her account at the time of the accident was inaccurate and unreliable.
23. I prefer Mr Grice's approach, which is to take the Recorder's comment in context and, having done so to find it is not irrational. The sentence that follows the critical passage reads thus:

"I do think that the Claimant's mother walked out intent on Mr Hope's 'bus and without looking to her right and at a pace which I would describe as normal but brisk."

24. As Mr Grice observed, the Recorder was describing a situation in which a pedestrian crosses a road in a normal way concentrating on the carriageway to the left from which they legitimately expect traffic to be coming, but overlooking the possibility that a vehicle might be travelling on the wrong side of the road and approaching the point of impact from what they would see as the wrong direction. This is a not uncommon pedestrian mistake and is one of the reasons why the Highway Code is explicit about the extreme care needed by motorists in this situation. This is, a very different situation from one where a mother, as the Recorder described it, launches herself at speed across a road with her child.
25. For my part, I would, therefore, reject Mr Edwards' challenge to the finding that Ms Slater and the respondent walked across the road. I turn to Mr Edwards' final complaint, which was that if the Recorder was satisfied the walk was brisk the travel speed must have been less than 1.2 seconds and the collision would have occurred in any event.
26. I have considered not only the Recorder's judgment but also a transcript of the evidence called before him. The Recorder took considerable care in his approach to this case, much of which is reflected in his judgment and is reflected in the fact that he insisted that the appellant be recalled to deal with the question of whether he thought Ms Slater ran or walked into the road. He also invited the experts to carry out a series of additional calculations, during the trial, based on the possibilities of her running and walking. The distinction to be drawn between walking and running speeds, therefore, must have been uppermost in his mind. Given the care that he had taken generally and conscious of the importance of this finding, I have no doubt that if he had thought that by qualifying the word "walk" by the word "brisk" he required more calculations, he would have asked for them. In my view, he can only have been proceeding on the basis that having found that the respondent and his mother had walked into the road, the average travel time of 1.2 seconds was the appropriate time to be considered and he needed no more help.
27. Thus if one accepts the travelling time of 1.2 seconds and if one accepts, as Mr Edwards concedes he must for the purposes of this appeal, "a safe speed", as the Recorder found, of 15 to 20 miles per hour, then but for the appellant's excessive speed of 27 miles per hour this collision would not have occurred.
28. Therefore I can see no basis for interfering with the judge's conclusions that there was negligence and that the negligence was causative of the collision. Given the large number of variables I do not intend to dwell upon the various calculations which both sides have helpfully put before us. Nor do I need to trouble with the respondent's counter-notice in which Mr Grice amongst other things took exception to the Recorder's finding that a "safe speed" would have been as "high" as 15 to 20 miles an hour. I would dismiss this appeal.

Lady Justice Black :

29. I agree.

Lord Justice Longmore:

30. I agree also.

Order: Appeal dismissed