England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRADFORD COUNTY COURT
Mr Recorder Miller
Claim No. 8BD02996

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/05/2012

Lord Justice Richards :

1. This is an appeal against an order of Mr Recorder Miller, sitting at Bradford County Court, on the determination of the issue of liability in a claim for damages for personal injury sustained when the claimant was run over by a bus driven by an employee of the defendant company. The Recorder found the defendant liable, subject to one third contributory negligence. The defendant appeals, with permission granted by Jackson LJ, on the ground that the Recorder should not have found primary liability on the part of the defendant, alternatively that he should have found a much higher level of contributory negligence on the part of the claimant.

The facts

2. The facts, in outline, are these. On 28 December 2005 a Mr Shad was driving one of the defendant's single decker buses in Bradford city centre. It was lunch-time. Visibility was good and pedestrians were plentiful, catching the post-Christmas sales. The bus stopped at a bus stop in Bridge Street and then travelled a short distance to traffic lights at a junction where it was to make a 90 degree left turn from Bridge Street into Hall Ings. It stopped at the lights. When the lights changed to green it began to move forwards. Immediately ahead of it, on the apex of the bend into Hall Ings, was a controlled pedestrian crossing. The red man on the crossing lights was showing against pedestrians. The claimant, however, stepped off the nearside pavement onto the crossing (or into the carriageway just beyond the crossing) and started to cross in front of the bus as it turned the corner. He was struck by the front nearside of the bus and fell to the ground. The bus was travelling at a slow speed but by the time it stopped its front nearside wheel had gone over the claimant, causing him serious crush injuries.
3. The bus driver, Mr Shad, subsequently pleaded guilty in the magistrates' court to an offence of driving without due care and attention on the occasion of the incident.
4. There are various points that I need to elaborate. First, it was the claimant's case that he had been crossing from the central island located on the offside of the bus and had therefore passed in front of the driver of the bus before he was struck. Although the claimant himself was found to be an unreliable historian, there was some witness evidence to support him on this point. But on the basis of CCTV footage from inside the bus, the Recorder found that the claimant had come from the pavement on the nearside of the bus and that the witness evidence to the contrary effect could only be correct to the extent that the claimant might have come from the central island before seeking (quickly and ill-advisedly) to retrace his steps.
5. At the time of the driver's conviction in the magistrates' court the CCTV footage had apparently not come to light and the available evidence pointed to the claimant having come from the central island on the offside and having therefore passed in front of the driver. The full evidential picture emerged only on examination of the CCTV footage.
6. The CCTV footage showed the bus stationary at the bus stop in Bridge Street until 13.16.36 (i.e. 36 seconds past 1.16 pm). The bus then moved off slowly and stopped at the traffic lights by the junction at about 13.16.46. It moved off from the traffic lights just before 13.17.31, when the lights had changed to green. In a frame timed at 13.17.31, when the bus is moving off, a male pedestrian can be seen just about to step off the offside pavement into the carriageway at or slightly beyond the pedestrian crossing. In the next frame, at 13.17.33, he can be seen a few feet into the carriageway, just in front of the bus, which is still moving forward. At 13.17.35 the bus has gone past the point where the man was crossing, and there is no sight of the man.
7. The man shown on the CCTV footage was identified by a witness, Mr Day, as the claimant. Mr Day had assisted the claimant when he was trapped under the bus. The Recorder described him as an impressive witness and accepted his evidence. The Recorder said moreover that when one considered the overall sequence of events it was inconceivable that the man who had stepped well off the kerb by 13.17.33 was not the claimant. None of the witnesses mentioned anyone else putting themselves in harm's way or having a near miss.
8. The CCTV footage from a different camera showed a female passenger seated at the front nearside of the bus. Her reaction at 13.17.33, when she was raising her hand, suggests that she saw what was about to happen. The Recorder relied on her reaction at 13.17.35, when she had put her hand to her mouth, as strongly suggesting that the impact had occurred by 13.17.34 at the front nearside of the bus.
9. The driver, Mr Shad, was no longer employed by the defendant and did not give evidence at the trial. There were in evidence, however, records of his interviews by the police. In an interview on the day of the accident he said that he saw a man come in front of his screen so quickly that he did not know where the man came from; he braked but could not avoid him; he saw him as he hit the bus. In a second interview some months later, in May 2006, Mr Shad said that he did not know if the man came from the right or the left; he was looking at the nearside mirror; his speed was between 3 and 5 mph; he continued turning, otherwise he would have hit the central island; but he braked as soon as he saw the man, and after that it took the bus 2 to 3 metres (or 6 to 7 feet) to stop.
10. On the question of speed, the Recorder said that several witnesses talked about the bus at the material time going at "a brisk walking pace", which he took to be 4 mph, i.e. the middle of the bracket given by Mr Shad.
11. On the question of braking, the Recorder observed that Mr Shad did not undertake an emergency stop. He referred to the evidence of a police officer as to the final position of the bus, which was that the front of the bus had cleared the pedestrian crossing by about 45 feet. He also referred to certain other witness evidence, and quoted in particular from the statement of a Mr Whittaker, as follows (the passage in italics was interpolated by the Recorder):

"I saw a single decker bus swinging round the corner from Bridge Street. The front left corner of the bus was hanging more or less over the centre of the crossing and the front wheels were rounding the corner. The man was on the crossing but the corner of the bus had caught one of his legs and it was sited under the bus. His other leg was underneath him and he was losing his balance. As he was beginning to fall he was twisting to his right side and going down. He fell down, ending up on his back. The bus was rounding the corner, so due to the position of the wheel, set back from the front of the bus, they had not yet reached the man. As the bus continued it began to hang the front of its body over the man and covered more of him. The front wheel was turned and thus was in direct line with his hips. As the wheel [that is clearly the front nearside wheel] reached him he was laid flat on his back shouting, 'Stop' and trying to grab at the bus with his hand. The front wheel hit the man on the hips and pushed him slightly forward before riding up on to him. The bus lifted as it went over him. The man was screaming as the wheel went over him. The bus driver didn't seem to know that he had run over someone as its speed did not alter. The bus continued down Hall Ings and the man was trapped beneath the bus, between the bus and the road. The bus made no attempt to stop and I jumped over the railings and started to bang on the side of the bus …. I ran along the bus for about three or four metres and the driver then brought the bus to a standstill."

12. What follows in the Recorder's judgment sets out the core of his reasons for his finding of liability against the defendant:

"19. Going back to that second police interview in May 2006, Mr Shad was asked why did he not do an emergency brake and he said, 'I was confused. I wanted to hard brake.' It was put to him that the accident experts had claimed that he should have stopped within six feet given the speed he was going but the front of the bus had gone 45 feet from the crossing. Could he explain that discrepancy? He said, 'I don't know. I stopped as soon as possible.' I am quite satisfied that a reasonably careful and observant professional bus driver would have noticed the claimant as he left the kerb. This is not a case … where the driver had to concentrate on a vehicle in front of him. Mr Shad was very experienced and familiar with this turn. The front of the bus was established in Hall Ings when the emergency arose and whilst he would have wanted to keep an eye on the nearside rear of the vehicle clearing the corner, he would have known from much past experience that he was on the right line. Indeed, the problem itself arose to his nearside front in any event. He ought reasonably to have been alerted by the claimant leaving the pavement at or slightly beyond the crossing point.

20. On the CCTV the claimant has already established some feet into the road by 1.17.33. It would have taken him half a second or so to have gone from the kerb to that point. The claimant is no athlete and so, allowing 1.5 seconds for thinking time, Mr Shad should have hit the brakes at 1.17.34. In other words, such anticipation and reaction as he should have shown in the circumstances would have enabled him to brake by the point of the collision and to stop to fast [sic] within a second, or six feet of travel.

21. On the balance of probabilities I am satisfied that, had Mr Shad done so, the wheel of the bus, albeit it is set back only a few feet from the front, would not have gone over the claimant causing him the crushing injuries. The speed would have been minimal. The wheel might well have touched the claimant but it would not have gone over him. The failure to react in time was the carelessness which he effectively admitted before the Magistrates. I too find the case proved or to put it another way the defendant has not discharged the reverse burden of proof on the issue.

…

23. If in the present case the claimant had simply been knocked over by the front corner of the bus, and suffered a fracture from the impact, the claim would have failed. The point is though that Mr Shad had the opportunity, which he ought reasonably to have taken, to avoid running over the claimant and he failed for whatever reason to do so."

13. The Recorder said at the end of para 21 that the defendant had not discharged the reverse burden of proof. This way of putting it was clearly prompted by Mr Shad's conviction for driving without due care and attention. In his skeleton argument, Mr Jeffreys QC submitted that no reliance should have been placed on the conviction since Mr Shad's plea of guilty was based on evidence which the Recorder found to be flawed because it was incomplete without the CCTV footage. A more telling point, as it seems to me, is that whilst the conviction may have shifted the evidential burden onto the defence in relation to the issue of breach of duty, it did not do so in relation to the issue of causation of the claimant's injuries. Nothing actually turns on any of this, however, since it is plain that the Recorder's comment about the reverse burden was not a necessary part of his reasoning: he was satisfied in any event, on the balance of probabilities, that the claimant had proved his case.
14. The Recorder proceeded to consider the question of contributory negligence. He said that one of the authorities relied on by the claimant was not in point but that the present case was closer to Clifford v Drymond [1976] RTR 134, in which the claimant had stepped onto a zebra crossing when a car travelling at not more than 30 mph had been about 75 feet away. The Court of Appeal held on the facts of that case that the claimant should bear 20 per cent of the blame. Having quoted from Clifford, the Recorder continued:

"25. Here, as I have found, the claimant's action in coming off the kerb when the red man was against him and when the bus was so close, either as a result of his misjudgement or his simple failure to look out, was materially more reckless than the conduct of the claimant in the case of Clifford and I find him one third negligent. I should add the case is clearly distinguishable also from Froom v Butcher. This was not an otherwise innocent driver or passenger failing to take the precaution of putting a seat belt on but a claimant who, by his own negligence, actively contributed to the accident itself. It was reasonably foreseeable when he left the kerb when he did that the bus would not stop in sufficient time to avoid running him over; not all drivers, even professional ones, drive to a good and reasonable standard all the time.

26. Although his injuries very largely flowed from the lack of prompt braking rather than from the initial collision, it seems to me the claimant must bear his fair share of the blame for the accident as a whole and so it will be inappropriate to make the standard 15 per cent discount on the Froom v Butcher principle and on the overall merits one third I think is fair …."

Primary liability

15. The issue with regard to primary liability is whether it was open to the Recorder to find that the driver's negligent failure to stop promptly was causative of the claimant's injuries. The defendant's case in essence is that the Recorder's analysis involved an unrealistic degree of precision, with a real potential for injustice. On the evidence at trial, it was not possible to conclude that in the absence of negligence the wheel of the bus "might well have touched the claimant but it would not have gone over him" (as the Recorder said at para 21) and that it was the negligent failure to react and brake in time that caused the wheel to go over him. The claimant did not prove his case on causation.
16. Mr Jeffreys says that the Recorder's analysis depended on allowing the driver precisely 1½ seconds for thinking time from the moment the claimant stepped off the kerb, and on a finding that if the driver had applied the brakes immediately after that thinking time he could have brought the bus to a stop within precisely 1 further second, or 6 feet of travel. Each step in that reasoning is challenged:

i) To allow thinking time of only 1½ seconds from the moment the claimant stepped off the pavement presupposes that the driver should have begun the process of thinking and reaction at precisely that moment. But the Recorder does not suggest that there was anything which should have alerted the driver to the claimant before he stepped off the pavement; and there were other things that required the driver's attention, including pedestrians on the central island, the line to take around the corner, and looking in his nearside rear mirror. To find that the driver in those circumstances was required to react the instant the claimant left the pavement is a counsel of perfection which does not reflect the reality of driving buses in a busy city centre.

ii) It cannot be said in any event that the driver should have applied the brakes at or by the time of impact between the claimant and the bus, since the time of impact cannot be fixed with precision: the Recorder relied on the reaction of the female passenger as strongly indicating that the impact had occurred "by" 13.17.34, whereas he found that the driver should have applied the brakes "at" 13.17.34. If the impact occurred before the time when the brakes should have been applied, then on the Recorder's reasoning the wheel would have gone over the claimant even in the absence of negligence.

iii) There was no evidential basis for the Recorder's finding that if the driver had braked immediately at 13.17.34 he could have brought the bus to a halt within 1 further second, or 6 feet of travel. It was put to the driver in his second police interview that "accident people claim you could have stopped within 6 [feet]" but there was no evidence to that effect at the trial. Moreover the Recorder was not entitled to say with precision that the speed of the bus at the time the brakes should have been applied was 4 mph: neither the driver's statement in interview that his speed was between 3 and 5 mph, nor the witness evidence that the bus was going at a brisk walking pace, justified the Recorder in taking a figure of 4 mph rather than 5 mph. At 5 mph the bus would have travelled a longer distance before coming to a halt and, on the Recorder's reasoning, the wheel would have gone over the claimant even in the absence of negligence.

17. Mr Jeffreys' skeleton argument contained an additional complaint that there was no evidence as to how far from the front of the bus the relevant wheel was positioned. The Recorder said that it was "set back only a few feet from the front", but his finding of liability depended on there being a distance of at least six feet between the front of the bus and the wheel (since he found that the wheel would not have gone over the claimant if the bus had stopped within 6 feet after the impact between the claimant and the front of the bus). At the time of the permission hearing before Jackson LJ it was suggested that there might be fresh evidence on this point. There was no application before us to admit fresh evidence but Mr Jeffreys very properly informed us that measurements had been taken and that the distance from the front bumper of the bus to the wheel arch is 7 feet 2 inches, and the distance from the front bumper to the nearest point of tyre contact with the road is 8 feet 4 inches. It follows that if the Recorder was entitled to find that the bus would have stopped within 6 feet after the initial point of impact if the driver had braked promptly, he was also entitled to find that in that event the wheel would not have gone over the claimant.
18. Mr Jeffreys' submissions have given me considerable food for thought. In this case there was a clear breach of duty by the driver in failing to brake as quickly as he should have done. I do not find it in the least surprising that he pleaded guilty to driving without due care and attention, and although the subsequent discovery of the CCTV footage has added materially to the evidential picture I do not see it as undermining the driver's conviction. The difficulty in the case lies in the issue of causation and whether it has been shown that the wheel would not have gone over the claimant if the driver had braked promptly. Everything occurred over a period of only a few seconds, and the dividing line between liability and no liability is undoubtedly a fine one. The Recorder's task was made more difficult by the limitations in the evidence at trial, in particular the absence of any expert evidence about stopping distances. But he had to do the best he could on the evidence before him, making relevant findings on the balance of probabilities. He approached that task with evident care, and despite the skill with which Mr Jeffreys advanced the defendant's case on the appeal I am not persuaded that we should interfere with the conclusion the Recorder reached.
19. Taking matters in stages, I am satisfied, first, that the Recorder was entitled to find as he did (at para 19 of his judgment) that the driver ought to have noticed the claimant as he stepped off the pavement. The Recorder gave sound reasons for that finding. He plainly had a personal familiarity with the location of the accident (which, we were told by counsel, is close to the Bradford law courts) and his judgment displays a detailed grasp of the evidence, including the explanations given by the driver in the course of his police interviews. I do not think that the finding can be dismissed as a counsel of perfection.
20. I see nothing wrong with the figure of 1½ seconds allowed by the Recorder for thinking time, that is to say 1½ seconds from the moment when the claimant stepped off the pavement until the moment when the driver should have applied the brakes. Mr Jeffreys' submissions seemed to be directed more to the question when precisely that period began and ended than to whether it was appropriate to allow a thinking time of 1½ seconds as such. As to that, the Recorder took the period as starting half a second or so before 13.17.33: that was the time at which he found that the claimant had stepped off the pavement. That was arguably generous to the defendant: the CCTV frame at 13.17.31 shows the claimant about to step off the pavement and would support a finding that he was in the road just before, rather than just after, 13.17.32. But in any event it was a finding open to the Recorder on the balance of probabilities. On the Recorder's approach the 1½ seconds for thinking time ended at 13.17.34 and the driver should then immediately have applied the brakes.
21. It is evident from the Recorder's reasoning that, although he referred to the reaction of the female passenger as strongly suggesting that the impact between the claimant and the front of the bus had occurred "by" 13.17.34, he took 13.17.34 as the actual time of impact. Again, in my view, he was entitled to do so on the balance of probabilities. That time fits well with the CCTV frames showing the front of the bus at 13.17.33 (where the claimant is visible) and at 13.17.35 (where he has disappeared) and with the corresponding frames showing the reaction of the female passenger at 13.17.33 and at 13.17.35.
22. The Recorder's finding that the bus was travelling at 4 mph was reasonably open to him. That was the mid-point of the range of 3 to 5 mph stated by the driver in interview, and it fitted well with the witness evidence about a brisk walking pace. He was entitled to make the finding on the balance of probabilities.
23. The most problematic of the Recorder's findings is that, at an initial speed of 4 mph, the driver could have brought the bus to a halt within 6 feet of travel from the moment he applied the brakes. It is common ground that at a speed of 4 mph a bus would travel just under 6 feet in a second; but there was no direct evidence before the Recorder that the bus could have stopped within that time or that distance. Although it was put to the claimant in his police interview that the "accident people" claimed he should have stopped within 6 feet, there was no expert evidence to that effect at trial; and although the driver himself said in the interview that he had stopped within 6 to 7 feet, this was patently mistaken as a matter of fact and did not amount of itself to evidence that the bus could have stopped within that distance.
24. There is, however, an air of unreality about this objection to the Recorder's analysis. It does not take much driving experience (or, indeed, experience of travelling on urban buses, which do stop suddenly from time to time, to the discomfort of passengers) to appreciate that the Recorder's finding looks right. The finding is also consistent with the approach to stopping distances in the Highway Code, though the figures actually given in the Highway Code relate to cars travelling at much faster speeds (and counsel were unable to point to any published table that would be of direct assistance in relation to a bus travelling at 4 mph). The Recorder's judgment does not point to any feature of the road or of road conditions that might lead to a longer than normal stopping distance. Nor does the defendant suggest that the finding was actually mistaken: the case is put simply on the basis that there was no evidence for it. The defendant's real concern, as I see it, is the degree of precision of the finding, given that on the Recorder's reasoning a few extra inches would have made the difference between liability and no liability. But that concern loses its force once it is known that the distance between the front of the bus and the relevant wheel is well over 7 feet, so that liability would be established even if the bus should have stopped within 7 feet rather than 6 feet. An even longer stopping distance would lead to the same result if, as seems likely (though the Recorder made no finding to this effect) the claimant did not fall directly to the ground on impact with the front corner of the bus but received some forward momentum from the impact.
25. For those reasons I do not consider there to be a proper basis for departing from the careful analysis that led the Recorder to conclude that the driver's negligence was causative of the claimant's injuries and that primary liability on the part of the defendant had been proved.

Contributory negligence

26. I turn to consider the defendant's alternative line of argument, that the Recorder's finding of only one-third contributory negligence is manifestly wrong. Mr Jeffreys emphasises the point that a collision was inevitable without any fault on the driver's part. The lights were red against the claimant and green in favour of the bus. The bus was there to be seen. It appears from the CCTV frame at 13.17.31 that the claimant was looking in the direction of the bus as it approached. Yet on the judge's finding he stepped quickly into the carriageway, and an impact was unavoidable. It is submitted that the actions of the claimant can properly be described as the overwhelming cause of the collision, and that blameworthiness is very substantial. A finding of one-third contributory negligence does not begin properly to reflect it. It is suggested that the appropriate level of deduction is 80 per cent.
27. Mr Jeffreys submits that Clifford v Drymond, to which the Recorder attached weight, was a wholly different case from this. It involved a pedestrian walking onto a zebra crossing when an oncoming car was 75-80 feet away; whereas the claimant here walked onto a controlled crossing with a red light against him and straight in front of a bus. Froom v Butcher [1976] 1 QB 286, to which the Recorder also referred, has nothing to do with the present case.
28. It is submitted that the correct place to start is Eagle v Chambers [2003] EWCA Civ 1107, [2004] RTR 9. In that case the driver had struck a young woman walking at night in the carriageway. The trial judge found that she should bear a greater share of the responsibility for her injures and apportioned her contribution at 60 per cent. The Court of Appeal substituted a figure of 40 per cent. Hale LJ, giving the judgment of the court, stated at para [10] that there are two aspects to apportioning responsibility between claimant and defendant, namely the respective causative potency of what they have done and their respective blameworthiness. The court rejected an argument, based on the wording of section 1(1) of the Law Reform (Contributory Negligence) Act 1945, that the primary focus should be on the claimant's conduct and her share in the responsibility: Hale LJ said at para [14] that realistically the court has to compare the two parties. At para [16] she said this:

"We also accept that this court is always reluctant to interfere with the trial judge's judgment of what apportionment between the parties is 'just and equitable' under the 1945 Act. But a finding as to which, if either, of the parties was the more responsible for the damage is different from a finding as to the precise extent of a less than 50 per cent contribution. There is a qualitative difference between a finding of 60 per cent contribution and a finding of 40 per cent which is not so apparent in the quantitative difference between 40 per cent and 20 per cent. It is rare indeed for a pedestrian to be found more responsible than a driver unless the pedestrian has suddenly moved into the path of an oncoming vehicle. That is not this case. The court 'has consistently imposed upon the drivers of cars a high burden to reflect the fact that the car is potentially a dangerous weapon': Latham LJ in Lunt v Khelifa [2002] EWCA Civ 801, para [20]" (emphasis added).

29. Mr Jeffreys submits that the present case is precisely the kind of case envisaged in the italicised sentence in that quotation. Whether from the viewpoint of causal potency or of blameworthiness, the claimant should have been found more responsible.
30. I find it difficult to draw a clear distinction between considerations of causal potency and of blameworthiness, but I do accept that there are factors in this case telling strongly in favour of a higher contribution by the claimant than was assessed by the Recorder.
31. The claimant's action in stepping into the road when the red man was against him and the bus was so close was described by the Recorder as the result of "his misjudgement or his simple failure to look out". I view that as an understatement. This was a controlled pedestrian crossing with the red man showing against pedestrians. That was a strong reason in itself why the claimant should not have attempted to cross at all. If he was minded to attempt to cross despite the red light, it was plainly incumbent on him to check very carefully indeed on the state of the traffic. It is not clear from the CCTV frame at 13.17.31 whether he was looking in the direction of the bus as it approached; but at 13.17.33 he was definitely not doing so. He was seriously blameworthy; and as Mr Jeffreys submitted, his lack of care made a collision with the bus inevitable.
32. On the other hand, the really serious injuries arose not from the initial impact but from the wheel of the bus going over the claimant, and in terms of causative potency I would ascribe greater weight to the conduct of the driver in failing to brake when he should have done: as the Recorder said, the injuries very largely flowed from the lack of prompt braking. More generally, a heavy responsibility rests on the driver of any bus in a town centre, and it is plain that a substantial degree of blameworthiness must attach to the driver's failures in this case.
33. Overall, even though the claimant moved into the path of the bus, I do not think that this is one of those cases referred to in para [16] of Eagle v Chambers where the pedestrian should be found more responsible than the driver for the injuries he sustained. I do, however, consider that he should share responsibility for those injuries on an equal basis. There is a qualitative difference between a finding of equal responsibility and a finding of one-third responsibility, and the difference is such as in my view to justify interfering with the apportionment made by the Recorder.

Conclusion

34. For those reasons I would allow the appeal, but only to the limited extent of varying the Recorder's order by substituting a finding of one half contributory negligence for his finding of one third contributory negligence.

Lord Justice Patten :

35. I agree

Lord Justice Ward :

36. I also agree.