England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(HIS HONOUR JUDGE BROWN QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		23rd January 2013

Lord Justice Hughes:

1. This is a defendant's appeal, with leave, in a road traffic accident case. The judge was asked to deal only with liability. The defendant was driving along a suburban road in Leatherhead. The road was one lane either way. On his right were houses, and upcoming on his right was a small parade of about three or four shops. Outside the shops, counting from the defendant's right as he approached, was a pavement, and then an additional width of road which has been conveniently described either as a lay-by or a parking bay, about a car's width wide, and long enough for something like three or four cars. Then there was the oncoming northbound carriageway. On the defendant's left, there had been and would be again buildings, chiefly houses, but for the moment there was a park or playing field railed off from the pavement. The road was governed by the normal residential area speed limit of 30 miles an hour. It was around 9.45 p.m. in the evening at the end of July, so that it was dusk. Lighting-up time had been about half an hour or 25 minutes earlier. The defendant's car had sensors which operated its headlights, and the sensors had put the headlights on.
2. The claimant was a 13 year-old boy, who was one of a group of about seven or eight of his own age congregating outside one of the shops in the parade on the defendant's right as he approached. Suddenly, and without warning, he threw an ice cream at one of his friends and, no doubt to avoid the consequences, ran away across what was left of the paved area, across the parking bay, between the parked cars, and across the northbound carriageway into the front or side of the defendant's car. There was no damage to the car to confirm the exact nature of the impact, but it appears that it was in the area of the "A" pillar and/or off-side part of the windscreen. The defendant had been travelling in his correct southbound lane.
3. The defendant's evidence was that he had not seen the claimant in motion, nor had he noticed the group of youngsters outside the shop. The first thing he knew was the thump of the impact. The claimant, for his part, was not, sadly, in a position to give evidence, but it almost inevitably follows from the impact that he did not see the car either or at least not until the micro-second before impact, because otherwise there would have been no impact.
4. One of his friends described the claimant as running not quite at right angles to the road, but rather at an angle somewhat away from the defendant's direction of travel. That witness also said that the claimant was looking back over his right shoulder, no doubt to see the effect of what he had done with the ice cream. It can readily be seen that that might explain his not seeing the approaching motor car of the defendant.
5. The judge held that the defendant ought to have seen the group gathering on his right-hand side. The driver of the car behind had done so, albeit he had reason to look in that direction because he was heading for one of the shops and intending to turn right into a side road immediately before them. What he had seen was a group of youngsters "laughing and talking together", and he added in his evidence that there was no indication that any of them was intending to cross the road or step out into it.
6. The judge's critical conclusions were these. (1) The defendant was driving at about 25 miles per hour. He had removed his foot from the accelerator as he approached the parade of shops, but had not moved it to cover his brake. (2) The judge held that 25 miles per hour was too fast in the circumstances. He held that the defendant ought to have been travelling at 15 miles per hour once he had seen, or should have seen, the knot of youngsters outside the shop. (3) The claimant had travelled about seven and-a-half metres, or perhaps a fraction more, across the road. In the helpful submissions that have been made to us, it is agreed that by that the judge meant seven and-a-half metres from the point at which the claimant emerged from the parking bay and the parked cars. (4) At 25 miles per hour, the defendant had no time to stop for the impact, but at 15 miles per hour, he would just have been able to stop, on the balance of probabilities. (5) On those primary conclusions and findings, the judge held that the defendant was liable. There was obvious contributory negligence, and he apportioned the liability 50/50.
7. In this court, Mr Lewers' challenges to the judge's findings are as follows. First, to the working assumption that the claimant was running at about 3.6 metres per second, which assumption underlay the conclusions as to the time available to the defendant to react and brake. Secondly, he challenges the finding the defendant ought to have been travelling at only 15 miles per hour. If he is right about those, or either of them, he contends, thirdly, that the judge was wrong to find that there was any breach of duty on the part of the defendant. Fourthly, in the alternative, he contends that even if there was a breach of duty, the judge was wrong to find that there was any causative link between it and the injury. And fifthly, in the further alternative, Mr Lewers challenges the judge's apportionment.
8. Underlying that, and part at least of the judge's judgment, is a certain amount of rather detailed running down arithmetic. That has its perils, but it arose in this case because the only available means of attempting to assess the time which was available to the defendant to react and to slow down or stop was the time that the claimant took to run across the road, and it followed from that that it was necessary to see whether it was possible to arrive at some estimate of the speed of this particular running 13-year-old. The judge had before him in writing, but not orally, the evidence of two experienced road accident reconstructors or engineers, and they had distilled some part of their evidence into a joint report, as well as providing their own individual ones. The joint expert report told the judge that there existed published research which suggested a range of running speeds for juvenile males, not further defined, of between 3.6 and 6.5 metres per second, and that that range narrowed to something between 4.8 and 5.1 metres per second for a small sampled group of 13 year-old males. There were, inevitably, uncertainties about those figures. It was not, for example, known if they were measured from a standing start or otherwise. But Mr Lewers' complaint is that the judge, in adopting a working assumption of 3.6 metres per second, took the slowest known average speed, or the bottom of the known possible ranges for a juvenile male generally, and indeed a figure somewhat below the one yielded by the limited sample of 13 year-old males. He reminds us that the driver behind the defendant described the claimant as sprinting across the road.
9. The judge drew attention to the fact that the claimant would have had to turn and then run and observed, for that reason, average running speeds "are helpful but not conclusive". He cannot, I think, have been saying that the need to turn would have affected the working assumption of running speed, because he was applying that assumption only to a time some little while after the claimant had turned: that is to say, from the time when he emerged from the parked cars in the parking bay. But, notwithstanding that, the simple fact was that the judge had to do his best with the limited material that he had before him. He had the evidence that the claimant was not being chased and that he was looking over his shoulder. He was perfectly entitled to come to the conclusion that, on the balance of probabilities, he probably was not moving quite as fast as he would have been in the middle of a 100-metre competitive sprint. The challenge to the judge's working assumption of 3.6 metres per second is, I am satisfied, one which cannot succeed. It was well within the range of possible findings of fact which was available to the judge. There is no warrant for this court interfering with it.
10. That being the case, the import of the arithmetic has been helpfully agreed before us in the following four propositions. First, the defendant would reasonably take one second to react. That was the judge's finding and there is no challenge to it. Second, given that the claimant crossed from the point that I have mentioned seven and-a-half metres or thereabouts of the road, that meant that, after the driver's reaction time, there was about 1.1 second braking time available to him had he seen the claimant. Third, at 15 miles per hour, had he been driving at that speed, he would just have been able to stop. Fourth, at 25 miles per hour, the speed that he was travelling, he would not have been able to stop and avoid the impact, but he would have reduced his speed to approximately 9 miles per hour.
11. With that background, one comes to the defendant's chronologically second, but in reality principal challenge, to the judge's findings, namely the speed at which the defendant ought reasonably to have been travelling. As to that, I have not the slightest doubt that the defendant succeeds. The judge held that the defendant should have seen the knot of youngsters outside the shop and should at that stage have slowed to a speed of 15 miles per hour. That is not a finding of primary fact, with which this court would be very slow indeed to interfere. Rather, it is a judgment of what it was reasonable or unreasonable for the defendant to do. I bear very much in mind Mr Bleasdale's sensible submission that it is a finding geared only to the particular facts of this case. It is not in terms a general conclusion that every driver who sees a group of youngsters outside a shop on the far side of the road should drive past at 15 miles an hour. But, even limited to these facts, I am not in the slightest doubt that the judge's conclusion is, in this respect, simply unrealistic. It is not a counsel of reasonable care, but of perfection. These youngsters were quite a little way from the carriageway in which the defendant was travelling. They were on a pavement separated from his carriageway, not only by the northbound carriageway oncoming for the defendant, but also by the parking bay and some part of the pavement area. They were doing nothing whatever to suggest that anybody was about to leave that comparatively distant, and certainly safe, area, and run across the road. They were not small infants running around indiscriminately and sending a signal that something dangerous was about to happen. Laughing and talking together they may well have been, but they did not, I have no doubt, provide any reason to require every driver passing by on the far side of the road to reduce his speed to as low as 15 miles per hour.
12. The observations of Laws LJ, to which Mr Lewers drew our attention, made in the case of Ahanonu v Southeast London Kent Bus Company [2008] EWCA Civ 274 at paragraph 23 are, as would be many other observations to similar effect, in point:

"There is sometimes a danger in cases of negligence that the court may evaluate the standard of care owed by the defendant by reference to fine considerations elicited in the leisure of the court room, perhaps with the liberal use of hindsight. The obligation thus constructed can look more like a guarantee of the claimant's safety than a duty to take reasonable care."

There was, I am quite satisfied in this case, simply nothing wrong with 25 miles per hour in the circumstances of this case.

13. The next question is whether, in those circumstances, there was any breach of duty by the defendant, if not a breach, as the judge found, in failing to slow to 15 miles per hour. Mr Lewers contended that it should not be held that the defendant fell below the ordinary standard of care to be expected. The defendant had, said Mr Lewers, very limited time to see the claimant, and, for all anybody knows, his attention may have been perfectly properly on something else for the moments which were involved. That submission is, if I may say so, persuasively made, but I am quite satisfied it is wrong. It was made, in fact, on the basis that the defendant had only half a second left to brake, as would have been the case if I had been persuaded to substitute the judge's 3.6 metres per second assumption of running speed a faster running speed of 4.8. However, at 3.6 seconds, which I have held to be unchallengeable, the defendant had just over two seconds, 2.1 seconds, to see the claimant and (of those) 1.1 seconds to brake. Those are not long periods, but they are significant in terms of moving vehicles and people. In those 2.1 seconds, the claimant is emerging from a line of parked cars on the defendant's right, in his direct field of view. He is emerging at speed, running, and he is running across the off-side lane. That is without any consideration being given to whether the defendant had any opportunity to see him immediately before that as he left the knot of friends and started his run. On those facts, the judge's conclusion that the defendant ought to have seen the claimant and was in breach of duty in not doing so is, to my mind, not only unchallengeable but inevitable.
14. The next question is whether that failure to keep a proper lookout contributed to the injury. Says Mr Lewers, that is simply not proved. It would be, of course, if as the judge had found, the defendant had time to stop. Since he did not, says Mr Lewers, it has not been proved. Now that the defendant's speed of 25 miles an hour is accepted to be reasonable, says Mr Lewers, it has not been shown that it would have made any difference to the severe head injury which the claimant suffered if the defendant had seen him and braked. Alternatively, says Mr Lewers, whether or not it would have made any difference will involve the hearing of evidence, engineering evidence, as to the likely motion of the claimant's body after impact and medical evidence as to the differences in injury as between impact at 25 miles an hour and impact at 9 miles per hour. Says Mr Lewers, since the claimant had called no such evidence before the judge, he had failed to prove causation, and the result should be that this court should substitute judgment for the defendant on the basis that he bears no liability whatever.
15. As to those two alternative submissions, I do not for my part agree with either. There may, no doubt, be marginal cases, but I have not the slightest doubt that there is enough evidence here to show that, on the balance of probabilities, an impact at 9 miles per hour will be less severe than impact at 25 miles per hour. There was clearly a forward motion component to the impact either from the "A" pillar or the off-side of the windscreen. The conclusion that the difference in impact would have made a difference in injury which is other than marginal, on the balance of probabilities, is, as it seems to me, irresistible.
16. I ought perhaps to add that, on the facts of this case, if I had been in any doubt about that, I should not have acceded to Mr Lewers' alternative submission that, since the claimant did not call doctors and/or engineers at the liability-only hearing, it would follow that he had failed to establish liability and nothing more could be done about it. The conduct and content of the liability hearing in this case will have been considered either by way of case management hearing, as is likely, or perhaps in correspondence or discussion between the parties. The decision was clearly jointly arrived at, and concurred in, that neither the engineers nor the doctors should be called. That plainly carried the implication that, if a question arose as to whether a lesser impact would make any difference and if that issue required evidence, such evidence was to be regarded as being part of the second stage of the split trial. It might of course be otherwise if, in a different case, the point had been raised in the pleadings or elsewhere, or drawn attention to. I make no general observations about how cases generally should be conducted, and I remind myself that there is no doubt that of course the onus is on the claimant to establish causation. There is no burden on a defendant in a case like this to raise the question beyond the general denial which was pleaded here. But no-one can foresee exactly which facts the judge would find, nor what his judgment would be as to what was or was not consistent with reasonable care, particularly as to speed. In other words, had anybody paid any attention to the question of whether this issue was going to arise, it could only have arisen after the judge's findings on primary fact and the extent of reasonable care. Having jointly concurred in a decision that no engineers or doctors should be called, the consequence was that, if evidence was needed, the decision as to causation would have to be deferred to the second stage of the split trial, otherwise principally directed to the question of quantum. However, for the reasons that I have given, that simply does not arise in this case.
17. What does arise, on the foregoing conclusions that I have set out, is apportionment. It is true that the claimant was 13. That is, however, quite old enough to understand roads. It was, sadly, the claimant who created the hazard and he did it by doing something entirely unexpected and, sad to say, very careless. The defendant's only fault was to fail to respond, as he should have done, in the briefest of moments. Once there is removed from the case the additional complaint that he was travelling too fast, a 50/50 apportionment simply cannot stand. I do not, myself, arrive quite at the figure for which the defendant contended, but I have little doubt that the appropriate apportionment between these two parties is 75/25: that is to say, there is 75 per cent contributory negligence.
18. For those reasons, I would myself allow the appeal to the extent of substituting a finding of liability with that apportionment.

Lord Justice Aikens:

19. I agree with the judgment that has been given by Hughes LJ and with his reasons. I only wish to comment on one particular point. That is on the argument concerning causation that was raised by Mr Lewers, namely that the claimant had not proved that, if the defendant had kept a lookout (as the judge found he had not), and if he had slowed down, then it would have made any difference in terms of injuries suffered by the claimant. On that, I agree entirely with the principal conclusion of Hughes LJ. However, I for my part would not wish to speculate on what might be the correct approach or correct course in cases which raise different facts.
20. I, too, would allow the appeal in the terms proposed by Hughes LJ.

Order: Appeal allowed.