England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON CIVIL JUSTICE CENTRE
HIS HONOUR JUDGE BIRTLES
1UC59546

		Royal Courts of Justice Strand, London, WC2A 2LL
		10th July 2014

Lady Justice Gloster :

1. This is an appeal against the judgment of His Honour Judge Birtles dated 5 March 2013, in which he dismissed a claim for damages for personal injury which the appellant, Miss Jade Christian, unfortunately suffered when the respondent's double decker bus, driven by its employee, a Mr Adepeju Lawal, braked suddenly. The appellant was thrown forward and another passenger fell on her. As a result of the incident, Miss Christian suffered a back injury and fibromyalgia. The trial before His Honour Judge Birtles was limited to the issue of liability and, in particular, whether the driving of Mr Lawal was negligent, with the result that the respondent was in breach of its duty of care to the appellant. Issues arising on the pleadings relating to contributory negligence and special damage were left over to another date, if they arose.
2. The judge heard oral evidence from the appellant and from Mr Lawal. He also had evidence in the form of CCTV footage taken by the bus' on-board cameras, as well as still images taken from that footage. We have also seen the CCTV footage and the stills.
3. The bus was being driven along Bromley High Street when the incident occurred at approximately 16.40.13 on 19 September 2008. So far as the CCTV footage was concerned the critical period, as the judge correctly identified, was from 16.40.07 to 16.40.13. The appellant's pleaded case was that she was standing near to the front of the bus, looking out of the front window, when the bus approached a queue of standing traffic without slowing down, and then suddenly performed an emergency stop.
4. The Defence denied negligent driving on the part of the driver. The judge summarised the pleaded position in paragraph 3 of the judgment as follows,

"The defence denies: that the Defendant's bus driver did not approach a queue of traffic in front of him without slowing down, but admits that he was forced to perform an emergency braking manoeuvre. The Defence then sets out the circumstances in which it is averred that the emergency braking had to take place, and it is specifically averred that a vehicle, referred to as "the red vehicle", which had been travelling in the nearside lane, suddenly and without warning attempted to cut in front of the Defendant's correctly-proceeding bus. The Defendant's bus driver had no alternative but to perform an emergency braking manoeuvre and attempted to move his bus to the right in order to avoid a collision with the red vehicle, which he did successfully. It is specifically pleaded that the braking force applied by the driver was commensurate with avoiding the potentially greater harm of a vehicular collision and its effect upon the passengers."

5. The judge preferred the evidence of Mr Lawal in relation to the incident to that of the appellant. He said:

"5. I begin by saying that I have no doubt whatsoever that both Miss Christian and Mr. Lawal are honest witnesses doing their best to assist me with their recollection of events at the time, but I note, as is often the case in personal injury accidents, there has been a substantial gap in time between the date of the accident, September 2008 in this case, and the hearing today in February 2013. Inevitably memories fade.

6. So far as Miss Christian is concerned, she was standing in the bus, I think not close to the front because the photographs show that she was standing beyond the steps leading up to the upper deck of the bus. She was facing her friend, and she accepted in her evidence, as I would have expected her to do, that from time to time she was talking to her friend. Her witness statement does not actually include any reference to what I have called the red vehicle at all, although it is referred to in a letter she wrote to the bus company, dated 23^rd April 2008. She suffered injury as a result of her accident and, perhaps not surprisingly therefore, the letter she wrote on 23^rd September 2008 to the Defendant is short on detail.

7. Mr. Lawal gave evidence. His evidence to some extent differs from that in his witness statement. Doing the best I can, I think it is the CCTV evidence and the photographs of the three CCTV cameras which give me a clear picture of what actually happened. However, I do also bear in mind inherent probability. It seems to me that the facts as shown by the CCTV photographs are more consistent with Mr. Lawal's evidence than that of Miss Christian. His evidence is more specific.

8. I particularly bear in mind the time sequence here. The photographs, which are timed and give a complete picture, start at 1640.02 seconds on 19^th September, and run through to 1723.26 seconds, which show the ambulance taking Miss Christian and another passenger to hospital. However, the critical period for the accident is in fact much, much shorter. It seems to me that the photographs which are relevant run between 1640.07, p.31h, and 1640.13, p.31q. In other words, a period of six seconds."

6. The judge set out the material facts as found by him at paragraphs 9 to 14 of the judgment as follows:

"9. At about 4.30 p.m. on 19^th September 2008 Miss Christian was a passenger on a 208 bus proceeding along Bromley High Street. Mr. Adepeju Lawal was the bus driver in the Defendant's employment. It is not disputed that he had been employed by them for some five years and had a driving licence for approximately 11 years. He has a clean driving licence and does not wear glasses. He was fully familiar with the Dennis Trident double-decker bus, index number X348 NNO, which he was driving on that day. The weather conditions were fine, the roads were dry and visibility was good. He was running on time and was in no hurry. He had driven the route at least once before on that day, and there were approximately 35 passengers on board.

10. At Mason's Hill he stopped, carried out his safety checks, closed the front doors and proceeded. He put on his offside indicator to show his intention to move away from the bus stop. He checked his offside, satisfied himself it was safe to proceed, and did so. Ahead of him there was traffic starting to queue at the junction with Westmoreland Road, which was to his nearside. He moved his bus slowly over towards the offside lane, as it was his intention to travel across the junction and continue along Mason's Hill. The nearside lane became a left turn for traffic wishing to turn left into Westmoreland Road. He stopped his bus behind the queuing traffic in the offside lane, waiting for the traffic lights ahead to change in his favour. The traffic in the nearside lane was still moving freely on the green filter. The traffic in front of him began to move forward and he moved off behind it. As he did so, what he described as a red 4x4 vehicle appeared in the nearside lane passing him and started to move over into his lane without any warning. He manoeuvred his bus to the right to try to avoid contact with the vehicle. (I will come to the photographs in a moment). He was aware that there were a number of standing passengers on the lower deck. His evidence is that he had to apply his brakes so as to avoid the queuing cars directly in front of his bus, and the red 4x4 had moved directly into his safe braking space. His evidence was that he braked. He understood, by hearing, that some at least of his passengers may have lost their footing. The circumstances of what happened after the accident in the bus are not material to the issue of liability I have to decide. Suffice it to say that the red 4x4 had returned to the nearside lane and turned left into Westmoreland Road. No one seems to have recorded the registration number of that car and it has not been traced.

11. I turn to the photographic evidence. The critical photographs seem to me to be these. First, 31b, which shows the position of the bus prior to the appearance of the red vehicle and the distance left by Mr. Lawal as to his braking distance from the car closest to him in his offside lane. 31c shows the red vehicle passing the bus on the nearside lane. 31e and 31f show the red vehicle starting to move across into the offside lane in which the bus was proceeding. 31h and 31i show the red vehicle moving across in front of the bus. In 31h the front offside wheel of the red vehicle is now slightly across the white lane dividing marker. 31i, which is taken at the same time, shows the picture from the rear of the red vehicle, and the front nearside of the bus. 31k shows the red vehicle slightly in front of the bus and now well across into the offside lane. Unfortunately, the photographs are not that clear, but it would appear to be substantially in the offside lane. And the same is shown by 31l which shows the front offside wheel of the red vehicle. 31n and 31q show the position of the bus once it had braked and stopped - photographs taken from I think the same camera at 1640.11 and 1640.13. Mr. Lawal gave evidence that the bus came to a halt when it was approximately a metre from the car in front, which can be seen in photographs 31n and 31q.

12. The accident occurred between 1640.11 and 1640.13. The reason for saying that is that one can see, at 1640.12, p.31p, the effect of Mr. Lawal's braking. It is most dramatically shown by a gentleman in the middle of the photograph who was in fact standing close to Miss Christian. He is wearing a striped T-shirt and is holding onto a pole with one hand but is flung round and indeed, as I understand it, struck Miss Christian in the back. Other passengers, however, particularly those sitting down, do not appear to have been thrown or jerked in any particular way at all. To the right of the gentleman and to the right of Miss Christian there is a lady standing holding a pole who does not appear to be shaken by the impact at all. I do not, I am afraid, accept Mr. Mooney's submission that this was a dramatic sharp braking. The photograph at 31p simply does not bear that out.

13. Considerable play has been made of the phrase used by Mr. Lawal that in driving along the offside lane he "closed him off", meaning the driver of the red vehicle. There is no evidence before me that Mr. Lawal accelerated in order to do that. What is clear is that he moved in the opposite direction to the red vehicle so that the offside wheels and part of his bus were actually on or across the hatched lines showing the central reservation. Bromley High Street at this point is two lanes in either direction. There is no evidence that he drove his bus towards the red vehicle in order to force it back into the nearside lane.

14. The Claimant's case, as put in closing submissions by Mr. Mooney, is that there were at least two opportunities for Mr. Lawal to brake prior to the point in time when he did. The first is at 1640.07, and Mr. Mooney relied on the photograph at p.31h, which shows, as I have said, the front wheel of the red vehicle crossing the white line dividing the nearside from the offside lanes, and showing an intention of the driver of the red vehicle to move into the offside lane. It is clear at that point from the photograph, if one looks further towards the other cars, that brake lights appear on them. They are all beginning to slow down as they approach the traffic lights. The second occasion when Mr. Mooney submits that Mr. Lawal should have braked is at 1460.09, two seconds later, as illustrated by the photograph at p.31l. That photograph shows the position of the car in front. It clearly again has its brake lights on, but it is impossible to tell whether it is moving or has stopped. I think the inference I can draw from the evidence I have heard is that at that stage it was moving but slowing down. One can see in the bottom left hand corner of p.31l the offside front wheel of the red vehicle. It is quite clearly well into the offside lane, and the position of the camera shows that the offside wheels at least of the bus are across the whole or part of the hatched dividing line with the oncoming two lanes of traffic. Those seem to me to be the material facts."

7. In paragraphs 15 and 16 of his judgment the judge made further findings of fact which led to his conclusion that it was the driver of the red vehicle who was responsible for Mr Lawal braking, and that there was no negligence on Mr Lawal's part. The reasons which the judge gave for reaching this conclusion are set out in those paragraphs as follows:

"15. The first issue is negligence, primary liability. There is no dispute that if Mr. Lawal is negligent to some extent, then the Defendant is liable for the totality of damages for her injuries and special damages, subject of course to the issue of contributory negligence. I start by reiterating the fact that the critical passage of time is four seconds. In my judgment, it was the driver of the red vehicle who was responsible for Mr. Lawal braking and there was no negligence on his part. I say this for the following reasons. First, Mr. Lawal quite properly moved to the right to avoid colliding with the red vehicle, which had moved across in front of him into the offside lane, and only began to signal its manoeuvre after it commenced it. Second, that forced Mr. Lawal to move across so that at least part of the offside of his bus was across some or all of the hatched white lines dividing the offside lane that he was driving in from the oncoming traffic. It was the speed of the red vehicle's manoeuvre which caused him to do that. That seems to me to be a sensible and proper reaction. Third, he could not cross the white hatched lines dividing the oncoming traffic from the offside lane he was in because that of course would have put him into the path of the oncoming traffic. Fourth, the Claimant does not suggest that Mr. Lawal should have accelerated so that he could have passed the red vehicle which was in, or partly in, the offside lane. That would have been an extremely dangerous manoeuvre because of the oncoming traffic, and the fact that, as he knew and could see, he was approaching a line of cars at the traffic lights. The way Mr. Mooney put it in his closing submissions was that Mr. Lawal should not have braked in the way that he did at the time that he did but he should, as I have said, have braked on either one or two earlier occasions at 1640.07 and/or 1640.09. That, Mr. Mooney says, would have given him adequate braking space and he would not have had to have braked suddenly at 1640.11, when he did actually brake. That seems to me, with respect to Mr. Mooney, a counsel of perfection. We are talking here about a gap of four seconds only. Looking at the photograph at p.31h, 1640.07, all that Mr. Lawal could see at that stage was that the red vehicle was starting to move across into the lane in front of him, and indeed there is a bold "keep clear" sign immediately in front of the bus. I can see no reason why Mr. Lawal should have braked at that point in time. The second time is 1640.09, p.31l. By this time the red vehicle is well over the dividing line between the nearside and offside lanes, and the bus itself is across, in part at least, the central hatched line dividing the offside lane from the oncoming traffic. It was in fact only two seconds later that Mr. Lawal braked.

16. I do bear in mind that the law does not judge Mr. Lawal by the niceties of hindsight, as Mr. Simpson puts it in his skeleton argument. He refers me to the decision of the Privy Council in Ng Chun Pui & Ors, v. Lee Chuen Tat & Anor. [1998] RTR 298. It is not necessary for me to refer to the facts of that case, which were considerably more serious than the present case, but the effect of the decision of the Judicial Committee of the Privy Council is that, as the headnote said, a driver of a vehicle who is placed in a position of peril and emergency is not to be judged by too critical a standard when he acted on the spur of the moment to avoid an accident. I think that is what Mr. Lawal did in this case. I do not think it is a case, as Mr. Mooney suggests, where Mr. Lawal had focused only on the red car and had ignored the line of traffic in front of him. I find that impossible to believe on the evidence, his own evidence, which is unchallenged, that he regularly drove this route and indeed had driven it earlier on the same day. This was a reflexive action, caused wholly by the driver of the red vehicle, who was attempting to push his way in front of the bus in a grossly negligent way. My conclusion therefore is that it was the driver of the red vehicle who was solely responsible for this accident. No blame attaches to Mr. Lawal."

8. On this appeal Mr Mooney, for the appellant, sought to persuade the court to set aside the judge's findings of fact and to conclude that the judge had erred as to the causes of the bus driver braking. The thrust of Mr Mooney's submissions was that the judge was wrong to find that it was reasonable for the bus driver to delay braking to the point when he actually did; Mr Lawal should have braked on either one of two earlier occasions at either 16.40.07 or at 16.40.09. That, submitted Mr Mooney, would have given Mr Lawal adequate braking space and he would not have had to brake suddenly 2 seconds later at 16.40.11 (which, according to the CCTV footage was the time the bus was first shown as stopped).
9. Mr Mooney took the court through a minute analysis of the still photographs of the CCTV footage to support his main proposition. He submitted that the judge had made an actual finding of fact that Mr Lawal did not brake until 16.40.11 and pointed to the last sentence of paragraph 15 and the passage half-way down that paragraph where the judge, reciting Mr Mooney's submissions said "he would not have to have braked suddenly at 16.40.11 when he did actually brake." By that time it was clear that the bus was extremely close to the white Fiat photographed in front of the bus. Mr Mooney pointed out that the respondent had accepted that an emergency stopping procedure had been adopted by Mr Lawal in order to avoid hitting the white Fiat. He submitted that it must have been apparent to the driver that he was always going to have to stop behind the white Fiat; therefore, leaving aside for a moment the manoeuvre by the red vehicle, the reality here was a failure on the part of the driver to stop in adequate time behind the stream of traffic in front of him, which was obviously applying its brakes. Mr Mooney further submitted that there was nothing that the red vehicle did which exculpated the driver; the still photographs clearly demonstrated that, by 16.40.04, the driver should have appreciated that he was approaching traffic lights and that he was necessarily going to have to come to a halt; the bus driver was then presented with the red vehicle switching from the nearside lane to the outside lane and travelling faster than the bus. Mr Mooney said that that manoeuvre by the red vehicle should have made it clear to the bus driver that braking in good time was even more important because his braking distance was being potentially reduced. But the one thing the bus driver did not do was brake, but on the contrary moved out to establish a third lane by straddling the central reservation. Mr Mooney submitted that it was clear from the photographs taken at 16.40.09 both from the side window of the bus and through the front window that, instead of braking the bus driver gained speed on the red vehicle and did not brake when clearly he should have done; that by this stage the red vehicle was clearly out of the equation and was no longer impeding the bus's progress, and not having any impact on the bus's ability to brake. Moreover it was clear by this stage (that is to say 16:40.09) that the red vehicle was itself braking as its brake lights were on and yet there was still no attempt by the bus driver to brake. The key point was there had been opportunity for the bus driver to brake safely earlier, which he had recklessly not taken. The reality submitted by Mr Mooney was that the bus had accelerated rather then braking and the manoeuvres of the red vehicle, at least from 16:40:07, were not impeding the driver's ability to brake. In all those circumstances the judge was wrong to conclude that the bus driver was not negligent in stopping at either 16:40:07 or 16:40:09.
10. Mr Simpson, who appeared on behalf of the respondent, submitted that the judge had come to the proper conclusion on the evidence and for the reasons which he gave; that the critical point here was that the law did not judge a driver in circumstances such as these by the niceties of hindsight, as the judge had correctly accepted. He submitted that the judge did not identify the precise time as to when Mr Lawal applied his brakes; and the judge's statement in paragraph 15 was in fact only referring to the time at 16:40:11 when the stills first showed that the bus had stopped. Mr Simpson pointed out that before the car actually stopped, there would have had to be a decision by Mr Lawal to brake, followed by the application of his foot to the brake pedal and then the actual stopping of the vehicle. He submitted that it was clear that the red vehicle had indeed stolen the braking distance of the bus; that the evidence was that the traffic was moving at 3-5 miles an hour and that certainly the evidence of the road markings on the stills demonstrated that by 16:40:07 the bus was slowing down. He submitted that, once the red vehicle manoeuvred out into the offside lane it was always clear that the bus driver was either going to have to take evading action into the notional third lane or to apply his brakes. Mr Lawal's evidence had been to the effect that, if he had had not taken evasive action and merely braked, there would have been a collision between the red vehicle and the bus. What had prevented the bus from braking any earlier was the action of the red vehicle taking the bus's braking distance. Therefore Mr Lawal could not have applied his brakes at 16:40:07 or 16:40:09 as he would have collided with the red vehicle.
11. There are many authorities which establish that an appellate court exercises the greatest restraint before overturning finding of facts made at first instance. A good example of a statement articulating this principle is that of Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360 at page 1372:

'First the appellate court must bear in mind the advantage which the first instance judge had in seeing the parties and the other witnesses. This is well understood on questions of credibility and findings of primary fact. But it goes further than that. It applies also to the judge's evaluation of those facts. If I may quote what I said in Biogen Inc v Medeva plc [1997] RPC 1:

"The need for appellate caution in reversing the trial judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation."

The second point follows from the first. The exigencies of daily courtroom life are such that reasons for judgment will always be capable of having been better expressed.'

12. Despite Mr Mooney's detailed analysis of the facts and some of the persuasive points which he made by reference to the still photographs, I am not persuaded that there is any principled basis for this court to interfere with the judge's careful findings of fact. The judge had the advantage of hearing and assessing Mr Lawal's evidence as to what had occurred. That would necessarily have assisted the judge's understanding of the CCTV footage and still photographs. In my judgment the judge was in a far better position to assess the evidence, both oral and photographic than this court is. It cannot, in my judgment, realistically be said that his factual conclusions were so obviously wrong, or so outside the ambit of those which could reasonably have been reached on the evidence before him, that we should set aside his decision. It cannot be suggested that he took into account irrelevant facts or wrongly applied the law.
13. This was an incident where the critical events occurred over a period of effectively 4-5 seconds from the moment of time at which the red vehicle pulled out in to the offside lane without indicating at 16:40:07 until 16:40:11 by which time the bus had stopped behind the white Fiat. I do not consider that the photographic evidence taken on its own demonstrates that Mr Lawal was negligent in not taking the option of braking at 16:40:07 or 16:40:09. Necessarily Mr Lawal's evidence would have been key in informing the judge's decision as to whether the former should have braked earlier and was negligent in not taking that option. In my judgment the judge was perfectly entitled to conclude, on the evidence before him, that whilst, with the benefit of hindsight Mr Lawal, could or might have taken another course, he was not to be judged by too critical a standard when he acted on the spur of the moment by taking evasive action, pulling into the central reservation to avoid the red vehicle and then subsequently braking.
14. For the above reasons in my judgment it would be wrong for this court to interfere with the judge's findings of fact in what was obviously a careful judgment notwithstanding that a different judge might have come to a different view. Accordingly I would dismiss this appeal.

Lord Justice Floyd:

15. I agree.