JOHN LUNT v BEKHIA KHELIFA [2002] EWCA Civ 801

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(His Honour Judge Bentley
(sitting as a deputy High Court judge))
[2002] EWCA Civ 801Case No Case No. B3/2001/2469Venue Royal Courts of Justice, Strand, London WC2
Between
JOHN LUNTClaimant/AppellantBEKHIA KHELIFADefendant/Respondent
Before
Lord Justice BrookeLord Justice LathamMr Justice HartJUDGMENTDate 22 May 2002

LORD JUSTICE BROOKE:

[1]I invite Lord Justice Latham to give the first judgment.

LORD JUSTICE LATHAM: On 30th October 2001 His Honour Judge Bentley QC, sitting as a judge of the Queen's Bench Division, found that the respondent was primarily responsible for a road traffic accident which had occurred on 6th March 1994, but held that the appellant was one-third to blame. Both the appellant and the respondent appeal to this court against the judge's conclusion on apportionment, with permission from the trial judge.

[3]The accident occurred in Kennington Park Road at some time not long before 1 o'clock in the morning. Kennington Park Road at the relevant place is a straight stretch of wide road and passes the Kennington tube station at a junction with a road called Braganza Street. That junction is normally controlled by traffic lights, which have a pedestrian phase for crossing Kennington Park Road. At the time neither the main traffic lights controlling the junction nor the pedestrian lights were working. The road was described by experts as being lit in the normal way for a London street, but was, however, to some extent less well lit at this junction because of the presence of trees. The road is subject to a 30mph speed limit.[4]The respondent was driving a left-hand drive Mazda car northwards along Kennington Park Road with a passenger at (as was found by the judge) approximately 25 miles an hour. At the junction with Braganza Street he struck the appellant, who was crossing from Kennington Station to the west side of Kennington Park Road. It was clear from the experts who had been instructed by each party and who had submitted an agreed report, that the appellant had stepped approximately two paces or so into the northbound carriageway - that is the carriageway in which the respondent was driving - when the collision occurred. The judge concluded that this happened within the precincts of the area across which pedestrians would normally cross in the event of the traffic lights operating as a control for both pedestrians and vehicles.[5]The conclusion of the experts was that the time taken by the appellant to move from the central reservation out into the path of the respondent was such that the respondent was approximately 20 to 25 yards away when he did so. The experts also concluded, and the judge found, that at the time of that collision the appellant was either walking or standing, most likely walking at the relevant time. There was no evidence to indicate that the Mazda car had braked at any time before the impact, and the evidence of the respondent was that he did not see the appellant before the point of impact.[6]The judge, in determining liability in this case, did not have the benefit of oral evidence from any witness. He had before him the statements made by the respondent and his passenger; he had the statements of the police officers who attended at the scene; he had, as I have already indicated, the agreed report from the experts. He also had evidence relating to a blood sample which was taken from the appellant at hospital at 5.30am which was found on analysis to contain 206mg of alcohol per 100ml of blood. A back calculation had been carried out which suggested that at the time of the accident the appellant's blood level alcohol would have been of the order of 274mg per 100ml, that is three and a half times the permitted limit for driving.[7]On the basis of that evidence the judge concluded that as far as the respondent was concerned there was an undoubted risk of which he should have been aware that there would be pedestrians in the area and that it behoved him to keep a sharp lookout, particularly when approaching this junction at which there was the tube station because of that risk. He concluded that, there being no evidence of braking and in the light of the respondent's own evidence that he did not see the appellant before the point of impact, the respondent had failed to exercise due care, and accordingly found that he was primarily liable for the accident which had occurred.[8]Having evaluated the evidence to which I have already referred in relation to the position of the appellant, he came to the conclusion that the appellant must simply have walked straight out in front of the respondent without taking account of the fact and probably not having seen the presence of the respondent's car. Accordingly he considered that he too had failed to take due care in this case for his own safety. It was in those circumstances that he concluded that the respective responsibility for the accident should be apportioned for the purposes of contributory negligence as to one-third to the appellant and two-thirds to the respondent.[9]The judge had been referred in the course of argument to certain authorities by the appellant relating to claims arising out of accidents in which the injured party had been affected by alcohol. The judge indicated that from those authorities he had gleaned the fact that in none was such a claimant held more than 40 per cent to blame, and finally concluded:
"They reinforce me in the view which I have come to, which is that the claimant was 1/3 to blame for the accident."
[10]It is submitted on behalf of the appellant that the judge was in error in coming to the conclusion that the appellant was responsible to that extent. He submits that if the appellant was to blame at all, he was only responsible to the extent of 20 per cent.[11]As far as the cases to which he referred the judge were concerned, he did not go through them in detail before us but submitted generally that they indicated a bracket of between 20 and 40 per cent as being the bracket found by the judges in those cases to have been appropriate where a claimant had been affected by drink.[12]The consequence, he submits, of the way in which the judge dealt with the matter in his judgment suggests that the judge in fact appeared to have been affected by the fact that the appellant had been drinking, so as in effect to have imposed a greater proportion of blameworthiness on him than would have been the case if the appellant had not taken drink; and it is in that respect, he submits, that the judge must have, as he did, arrived at a wrong apportionment.[13]The respondent, on the other hand, submits that the judge was wrong because the appellant was at least 50 per cent to blame. He has submitted to us that in determining how to apportion blameworthiness in this situation, the fact that the appellant was affected by alcohol was a relevant consideration and meant that his blameworthiness was the greater. It was submitted accordingly that in the circumstances of this case the respondent, being a person who had driven at a perfectly proper speed along the road, should not be held more responsible for the sad accident which resulted from this appellant stepping out in front of his car when he had little opportunity to avoid him and thereby prevent the accident.[14]It seems to me that both appellant's counsel and respondent's counsel appear to have placed far more emphasis on the issue relating to alcohol than the facts of the case merit. The fact is that the alcohol which had been consumed by the appellant may well explain why he behaved as he did. It does not seem to me that it in any way affects the blameworthiness of the appellant in the circumstances of this case; and I do not consider that any fair reading of the judge's judgment indicates that the judge was so affected.[15]We have indeed been referred to one authority which is of some relevance, Liddell v Middleton (1996) PIQR P36. In that case the Court of Appeal had to consider an accident in which a husband and wife had been crossing a road on which there was traffic. The wife, appreciating that there was danger from the traffic, ran across. The husband stood in the middle of the road for a time and then went forward, but was unfortunately struck by a vehicle and injured. It was clear that he was significantly affected by alcohol, and evidence had been led at the trial indicating the effect of alcohol on accident statistics, particularly relating to men. The judge concluded that the husband was 25 per cent to blame for the accident. This court (consisting of Stuart-Smith, Peter Gibson and Hutchison LJJ) allowed the appeal and increased the responsibility of the husband to 50 per cent.[16]In the course of his judgment, Stuart-Smith LJ considered the correct approach to the fact that the husband had been affected by alcohol in the context of the issue of apportionment. He said at page 40, in relation to a submission which sought to equate the approach to a drunken driver to the situation of a drunken pedestrian, as follows:
"That may be so in the case of a driver who puts himself in the control of an object which is capable of great damage if it is not properly controlled, but I am not persuaded that it makes a significant difference in this case in the case of a pedestrian. It seems to me that the pedestrian's conduct has to be judged by what he did rather than the explanation as to why he did it."
[17]Then at a later stage, at page 43, having referred to the statistical information which had been before the judge, he said:
"The result of that statistical survey is no doubt a matter of expert knowledge not available to a layman. But whether it is of any material assistance in this case is another matter. It is not the fact that a plaintiff has consumed too much alcohol that matters, it is what he does. If he steps in front of a car travelling at 30 mph at a time when the driver has no opportunity to avoid an accident, that is a very dangerous and unwise thing to do. The explanation of his conduct may be that he was drunk: but the fact of drunkenness does not, in my judgment, make the conduct any more or less dangerous and it does not in these circumstances increase the blameworthiness of it."
[18]It seems to me that those passages from Stuart-Smith LJ are apt to the circumstances of this case. It seems to me, as I have already indicated, that the fact that the appellant had taken drink was of undoubted significance if one was looking for some reason why he might have behaved in the way he did. But for the purposes of determining apportionment, the important question is what he did.[19]Returning then to the issue before this court. The question therefore is whether or not the judge can properly be criticised for concluding that the appellant should be held one-third to blame. This court has repeatedly said that it will only interfere with the apportionment of blameworthiness in cases such as this where it is clear that the judge has gone plainly wrong.[20]It seems to me that it may well be that the judge in this case was generous in his approach to the liability of the appellant; for it seems to me that the appellant undoubtedly must bear a substantial burden for this accident. He was the one who created the dangerous situation by stepping out as he did into the carriageway when the respondent's vehicle was so close. But nonetheless, bearing in mind the fact that this court has consistently imposed on the drivers of cars a high burden to reflect the fact that a car is potentially a dangerous weapon, I find it difficult to see how I could properly categorise the judge's apportionment in this case as plainly wrong.[21]In those circumstances, I would dismiss both the appeal and the cross-appeal.

MR JUSTICE HART: I agree.

LORD JUSTICE BROOKE: I agree. The junction between Kennington Park Road and Braganza Street is controlled by automatic traffic signals which have facilities for pedestrians who wish to cross the road. When they are working these traffic signals are of great benefit to both drivers and pedestrians. When there is a green light in favour of drivers they know that it is safe for them to proceed. When there is a green light in favour of pedestrians they, in turn, know that it is safe for them to proceed. When such traffic signals are not working they create a hazard, not a benefit. Both drivers and pedestrians have to take care at such a crossing. If they do not take care, they are both liable to be responsible in part for any ensuing accident.

[24]The judge had to make an assessment as to the proportion of responsibility for the driver and the pedestrian. The judge appears to have been influenced by the fact that when Mr Lunt walked from the refuge into the western side of the carriageway the defendant's vehicle would probably have been 20 to 25 metres away, and the judge was satisfied that had the defendant been keeping a proper lookout he would, in the two seconds it took him to reach the point where the collision occurred, have been able to take effective evasive action by steering to his nearside. In those circumstances the judge considered that the driver was two-thirds to blame.[25]Like Lord Justice Latham, I would not necessarily have reached the same conclusion myself. But it was certainly a conclusion which the trial judge was entitled to reach, bearing in mind always that a motor car is a potentially lethal instrument.[26]In those circumstances, I do not consider that this is an appropriate case where this court should interfere with the decision of the trial judge on a matter of apportionment, even though the trial judge dealt with the case on paper. He did not hear oral evidence of any kind. I nevertheless consider that the normal reticence of the Court of Appeal in interfering with decisions on apportionment should apply in such a case, unless the trial judge is clearly wrong, and I cannot form that view.[27]For those reasons, coupled with the reasons of Lord Justice Latham with which I agree, I agree that both the appeal and the cross-appeal should be dismissed.

ORDER

Appeal and cross-appeal dismissed; no order for costs save detailed assessment of the Claimant's Community Legal Services Funding. (Order not part of approved judgment)

Cited in 32 later judgments

and 23 more of the most senior