England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MR NIGEL WILKINSON QC)

		Royal Courts of Justice Strand London, WC2A 2LL
		24 June 2015

LORD JUSTICE VOS:

1. This is an application for permission to appeal from the order made by Mr Nigel Wilkinson QC, sitting as a deputy judge of the Queen's Bench Division on 1 May 2014, dismissing the claimant pedestrian's claims for damages for negligence against the defendant driver in respect of an accident that occurred on 26 May 2011 at 6.25 pm in Vivian Avenue, Hendon, London NW4.

2. Vivian Avenue is in an east-west direction, broadly, and is a relatively wide road with a single broken white line down the middle of the carriageway. The defendant's car was travelling west, having turned left at Central Circus in fairly heavy rush-hour traffic. The accident happened just before the junction of Vivian Avenue with Allington Road as the defendant's car was passing a stationary bus at a bus stop in the westerly carriageway. The traffic travelling in an easterly direction was slow or stationary waiting at the traffic lights ahead at Central Circus. The accident occurred when, as the judge found, the claimant ran into the road crossing in a southerly direction to rejoin her partner whose car was stationary in the westerly carriageway just in front of the stationary bus. The claimant passed through the stationary easterly traffic and into the westerly carriageway just as the defendant passed the bus. At the point of impact the defendant's car was travelling at about 15 miles per hour. The defendant did not see the claimant before the impact at all. The claimant was seriously injured. The defendant's car came to a halt no more than two car lengths after the impact.

2. The judge heard evidence from the claimant's partner who had actually, on his findings, seen nothing of relevance at all, and from a Mr Roy whose evidence he did not accept. He also heard evidence from two of the drivers facing east in the traffic in Vivian Avenue: a Mrs Heath, who was parked facing east, and a Mr Raivid, who was not. He accepted their evidence as to the suddenness of the claimant's emergence into the path of the defendant's car. Most importantly, he found on the basis of Mr Raivid's evidence that the claimant emerged suddenly into the path of the defendant's car and that she "was looking back as she ran" and that she did not look to her left. These witnesses were not in any sense dazzled by the sun that was setting obviously in the west because they were facing east away from the sun's rays.
3. On these facts, the judge dismissed the claimant's claim for damages for negligence, holding that the sole cause of the accident was the thoughtless manner in which the claimant had crossed the road. The judge did not think that the defendant was dazzled by the sun, even though his sun visor was not in use, nor that he had been going too fast in all the circumstances. He accepted that the defendant's offside wheels might have crossed the white line as he passed the bus, but not that he was on the wrong side of the road on the impact taking place.
4. Mr Edward Ash, counsel for the appellant before me, raises four grounds of appeal but does not challenge, importantly, the judge's primary findings of fact. First he argues that it should have been inferred from the fact that the defendant did not see the claimant before the impact that he was in some measure responsible for the accident and negligent. Secondly, he argues that the judge should have relied on a series of authorities showing or dealing with the principle of causative potency relating to drivers and the apportionment of liability in contributory negligence. Thirdly, the judge, he said, failed to apply a sufficiently high standard of care to the actions of the defendant driver. Fourthly, Mr Ash points to the public importance of there being an appeal heard so that the Court of Appeal can comment on the doctrine of causative potency, as he calls it, and deal with questions underlying the law of negligence.
6. I will consider each of these grounds in turn. On the first point as to the automatic inference, it is necessary to consider the facts. All the evidence was that the defendant was paying proper attention to his driving and exercising due care. He was, in the jargon, keeping a proper lookout. That was the judge's finding. He did not see the claimant because she was partly obscured by the oncoming traffic. Although the upper part of her body was obviously visible (as Mr Ash has pointed out, there was apparently a witness statement from his passenger saying that she had seen the claimant emerging from the easterly traffic), the defendant may quite properly and carefully have been looking at the bus to ensure that he passed it safely; the still pictures that the judge saw taken from CCTV cameras seem to have shown that, at least at some stage in the process. But the defendant was not negligent just because he was not looking in both directions at once. It cannot be automatic, in my judgment, that a driver will be liable where he does not see a pedestrian who emerges from traffic, hurrying across the road without looking at all. Of course he may be negligent in such circumstances, but there is nothing automatic about negligence. This was not a case, in my judgment, in which an automatic inference had to be drawn. The judge's approach was, in my judgment, entirely justified on the evidence that he heard. That, indeed, was the conclusion of McCombe LJ when he looked at the matter on paper and rejected the application for permission to appeal.
7. As to the second ground of appeal, Mr Ash has shown me a number of the authorities relating to the causative potency of drivers. They do not, in my judgment, take the matter any further beyond the clear evidential findings of the judge. The cases of Lunt v Khelifa [2002] EWCA Civ 801 and Eagle v Chambers [2003] EWCA Civ 1107 emphasise that a high burden is imposed on car drivers because the car is a dangerous weapon. Of course that is entirely right; but those cases also emphasise that a driver will not be liable if a pedestrian suddenly moves into the path of an oncoming vehicle. That is, very sadly, what this claimant did in this case. None of the pleaded allegations of negligence against the defendant driver succeeded on the facts. He was not driving too fast, he was not failing to keep a proper lookout, he did not see the claimant's fleeting appearance above the east-bound traffic as she ran across the east-bound carriageway, but that was not due to a failure to take proper care: he was taking proper care as he slowed to pass the bus.
8. As for the third ground of appeal, I can see no basis for the suggestion that the judge failed to apply a high enough standard of care. Drivers are not automatically liable for accidents that take place with pedestrians, as I have said. Unfortunately, fault-based liability requires proof of fault. This driver did not fall below the standard of care of a reasonable person that the law of negligence imposes in this country. It is not open to the Court of Appeal to overrule the law of negligence or change the basic law; that has been established by the common law for many years. It is only fault-based liability that exists in this country for negligence; in other countries different regimes apply. It would be for Parliament, not the Court of Appeal, to change that position. There is therefore no point in giving permission to run to appeal on that basis.
9. Finally, Mr Ash points to the need for the Court of Appeal to consider the situation of a careless pedestrian and a careful driver on the grounds that a decision on causative potency will be a matter of public interest. I beg to disagree. In my judgment, this was a case that turned only on its very special facts. It is a very sad case. It is one in which the claimant was very seriously injured, sadly by her own negligence, but I cannot change those facts that the judge found and the facts are not challenged by the claimant.
10. In those circumstances, this application for permission to appeal must be dismissed on the basis that there is no real prospect of the appeal succeeding.