Turner v Arriva North East Ltd [2006] EWCA Civ 410

Case No B3/2005/0195[2006] EWCA Civ 410
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MIDDLESBROUGH COUNTY COURT
(MR RECORDER BULLOCK)
Venue Royal Courts of JusticeDate Friday, 24 th March 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE TUCKEY
LORD JUSTICE LAWS
SIR MARTIN NOURSE
CRAIG TURNER AS PERSONAL REPRESENTATIVE
OF JULIA VERONICA TURNER (DECEASED)
CLAIMANT/APPLICANT
- v -
ARRIVA NORTH EAST LTD
DEFENDANT/RESPONDENT
(DAR Transcript of
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR C WILLIAMS (instructed by Messrs Williamson Hill, St James House, 139 Albert Road, Middlesbrough, TS1 2PP) appeared on behalf of the Appellant.
MR P RUSSELL (instructed by Messrs Crutes) appeared on behalf of the Respondent.
J U D G M E N T
Between
TurnerAppellantArriva North East LtdRespondent

LORD JUSTICE TUCKEY:

This

[1]is an appeal from a judgment of Mr Recorder Bullock given in the Middlesbrough County Court in which he dismissed a Fatal Accidents Act claim made by the appellant, Craig Turner, for the benefit of the dependants of his wife who was unfortunately killed in a road accident when she was struck by one of the defendant’s buses. He appeals with the permission of Ward LJ, who however made it clear that he should not be optimistic about the outcome.[2]The accident happened at about 3pm on 22 December 2000 in Wilson Street, which is in the centre of Middlesbrough. This street has three lanes going in each direction. It is divided by a railed central reservation but opposite Sainsbury’s there is a pelican crossing. On the central reservation at this point, there is quite a large pedestrian refuge controlled by guard rails so that pedestrians are able to cross each half of the road separately. The outer, right-hand lane of the side of the road nearest to Sainsbury’s is a bus lane. The inner lane leads to the Sainsbury’s car park and the middle lane to another nearby car park.[3]The accident happened on the pelican crossing which is controlled by lights. It was a fine day, visibility was good, but as there were only a few shopping days left before Christmas (as the Recorder put it) the whole area was full of traffic and pedestrians. The appellant and his wife parked in the Sainsbury’s car park and went to cross the road on the pelican crossing. A number of people were waiting to cross but the red signal was against them. Nevertheless, the appellant and the deceased set out to cross the road through the traffic. She was ahead and they were holding hands. They managed to cross the first two lanes but without looking to her right the deceased walked quickly into the path of a bus which was in the bus lane. She was thrown into the air and sustained head injuries from which she subsequently died.[4]The single-decker bus had just come out of a nearby bus station and was full. Its experienced driver said that there was stationary traffic in the two inside lanes, but his lane was clear and the lights on the crossing were green in his favour. There were pedestrians waiting to cross from the central reservation on his right. He saw the two pedestrians to his left momentarily before the collision when they came out from between stationary cars. He braked immediately before the collision but it was unavoidable. The deceased was struck by the front nearside of the bus.[5]Most of what I have said so far was common ground at the trial. There was an issue about the state of the traffic in the two inside lanes. The Recorder found that it was not entirely stationary but the crossing was partially obstructed by a car in the middle lane around which the deceased and the appellant had to weave before they reached the bus lane.[6]There was also an issue about the speed of the bus. The driver said he was travelling at 15 miles an hour but, based on the evidence of a police officer who was an expert in accident investigation and reconstruction, the Recorder found that he had been travelling at 28 mph when he saw the deceased and 24 mph at the moment of impact. Based on this officer’s evidence, the Recorder also concluded:
“The bus driver on his approach to the crossing, although having an elevated seating position is likely to have been initially afforded restricted views of the pedestrian as she crossed. The size and shape of the vehicles queuing prior to the crossing may have restricted this to a view of the pedestrian’s head and of the torso. She would only have become fully visible to the driver as she stepped beyond the front of the stationary vehicles in the centre lane. The pedestrian, however, would have had a clear view of the bus and should have been able to see it.”
[7]The appellant had realistically accepted through his counsel, Mr Christopher Williams, that the deceased had been negligent. The allegation was, however, that the bus driver had also been negligent because he was going too fast and should have seen the deceased before he did. The combination of these two failings on his part meant that some part of the blame for this tragic accident should have been apportioned to the driver.[8]The Recorder decided that the bus was not going at an excessive speed. Mr Williams challenges this conclusion. He says that a speed close to the 30mph limit was too high having regard to the accident location, the fact that the area was full of traffic and pedestrians, the size and weight of the bus and the driver’s own, wrong, estimate of the speed he was travelling at. He also relies on the fact that the driver accepted that he had seen pedestrians crossing on red lights before and that at the time he approached the crossing he had to look at all areas of danger, which included the road ahead and pedestrians waiting to cross the road from the central reservation.[9]Succinctly and powerfully though these submissions were put, I am afraid I do not accept them. Speed in such a situation is very much a matter of impression and the views of those witnessing an accident of this kind are very important. There was a good deal of evidence before the judge that the bus was not going too fast. One of the witnesses saw the accident from the central reservation. She was a paramedic and held an advanced ambulance driving qualification. She said:
“I certainly formed the impression that the bus was not travelling at an excessive speed.”
Another witness was standing in the front of the bus. She said, “The bus was not travelling fast”. Elsewhere she said, “Its speed was entirely normal and safe”. A third witness whose statement was before the judge was standing waiting to cross the road from where the deceased crossed. He said the speed of the bus did not appear excessive. The expert police officer made no criticism of the bus’s speed either. All this evidence, it seems to me, fully justified the Recorder’s conclusion. The bus driver’s road ahead was clear and the lights were green in his favour. There was no good reason why he should not have proceeded at the speed he did.

The Recorder’s conclusion about whether the driver was keeping a proper lookout was:

“At the time when he looked to the left, no-one was crossing. He obviously had other areas of the road to look at, the road in front, the conglomeration of pedestrians to his right, which he thought formed a greater danger than anything else, and of course all the traffic. His counsel says that it would be a counsel of perfection to say that he should concentrate on everything all the time. I do have to agree with that proposition. The [deceased and her husband] could only have been on this road for two or three seconds and within that time, the bus was at that crossing. I do not find that there was any negligence on behalf of the driver and I do not see that he could have done anything at all to avoid this collision.”
[11]Mr Williams submits that this conclusion was wrong because the distance from the kerb from which the deceased and the appellant had walked to the bus lane was six and a half metres. From the driver’s elevated position he could and should have seen them before he did.[12]I disagree. I do not think the Recorder’s decision about this can be faulted. The evidence of the police officer that the deceased could only have become fully visible to the driver as she stepped round the front of the stationary vehicles in the centre lane posed, as Ward LJ said, a considerable obstacle to success on this issue. I think it imposed an insuperable obstacle. It would, as the judge accepted, be a counsel of perfection to expect the driver to have seen the deceased before he did when she was crossing the road against a red light and between and around slow-moving or stationary traffic.[13]For those reasons, sympathetic though I am to the appellant, I would dismiss this appeal.

LORD JUSTICE LAWS: I agree entirely.

SIR MARTIN NOURSE: I also agree.

Order

Appeal dismissed.

Cited in 2 later judgments