Ahanonu v South East London & Kent Bus Company Ltd [2008] EWCA Civ 274

Case No (1) B3/2007/1562Case No B3/2007/0825[2008] EWCA Civ 274
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON CIVIC JUSTICE CENTRE
(1)& (2): HIS HONOUR JUDGE PETER LATHAM
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 23 rd January 2008
Before
LORD JUSTICE LAWSLORD JUSTICE LAWRENCE COLLINSMRS JUSTICE BLACK
Between
AHANONURespondent/SOUTH EAST LONDON & KENT BUS COMPANY LTDAppellants/
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr C Mendoza (instructed by Messrs David Hurley Associates) appeared for Appellants.Mr K Walmsley (instructed by Law Solicitors) appeared for Respondent.
Judgment
[1]On 7 December 2002 at Peckham Bus Station the claimant, Miss Ahanonu, an undergraduate then aged about 18, was squashed between the defendants’ bus, a double-decker and a bollard on the carriageway from Peckham bus station to Peckham High Street. The accident took place at the exit road from the bus station where there is a right angle corner turning left for buses leaving the bus station with the carriageway protected by railings.[2]The bus driver was Mr Terence Votier. Mr Votier was close to retirement and it seems had never had any sort of serious accident before. On 24 May 2007 HHJ Latham, following a two-day trial on liability and contributory negligence heard on 11 and 12 April 2007, held that the driver had been negligent but the damages should be assessed on the basis of the claimant having been 50 percent contributorily negligent.[3]This is an appeal by the defendants with the permission of this court. Their primary submission is that the claimant’s claim should have been dismissed in its entirety. In the alternative they submit that the deduction for contributory negligence should be 80 percent.[4]Originally liability was admitted and directions were given in relation to trial only on contributory negligence and quantum, but the defendants were given permission to resile from their admission of liability shortly before the trial.[5]The locus of the accident was a crucial point in this case. In order to leave the bus station the driver goes along an access road towards Peckham High Street. In order to do this he goes over a pedestrian crossing inside the bus station. After the pedestrian crossing the driver then has to negotiate after about 15 metres a left-hand, right-angled bend about 21 metres before the junction with Peckham High Street. This is a very tight bend, given that buses will also be coming to the bus station from the opposite direction.[6]There is a metal bollard just before the apex of the left-hand corner. That is where the accident took place. There are railings all the way from the pedestrian crossing on the near side of the road right through to the junction with Peckham High Street and there are no gaps in the railings. The bollard at the corner has extensive scrape marks on it and the kerbstone at the apex of the corner is worn away, which shows that the buses normally or very frequently go very close to the kerb. There are warning signs attached to the railings which say:
“Warning. Buses turning. Pedestrians must keep to the footways.”
[7]The claimant’s case was that on the day of the accident she had been to Peckham library to do some studies where she needed a book. On leaving the library she walked along Peckham High Street to the bus station because she needed to take a bus to come home. As she got to the entrance to the bus station, one of her notes blew into the carriageway and as a result she left the footpath and went onto the carriageway side of the railings to try to recover the piece of paper. It was at that time that the bus came into collision with her. Her case was that this was a hazardous corner as shown by the marks on the bollard of repeated collision by buses against it, and the accident was foreseeable because many pedestrians jaywalked across the carriageway. The driver could and should have seen her before the collision and stopped or otherwise avoided it.[8]The driver admitted that he did not see the claimant before the collision because his attention to the collision was only brought to his notice by some other pedestrian banging on the back of his bus. In the police report made shortly after the accident he was recorded as saying as follows:
“I pulled out … at 20:03 and was following a 381 bus out [of the station].”
He went on:
“As I entered the exit road I took a wide sweep as usual at the bend in the exit road. I was keeping an eye on the bus in front in case he suddenly stopped. Then I heard a scream from behind me. Then somebody banged on the front door and shouted ‘stop the bus’. I checked my nearside mirror and saw a crowd standing at the corner of the exit ramp. I opened the doors and the man who had banged on the doors told me to move back a couple of feet which I did. I then got out and checked on her condition and called an ambulance.”
[9]In the account which he gave to his employers he said:
“Towards this exit on the left hand turn … I took a wide sweep, as usual, and kept my eye on the bus in front, just in case I had to stop for some unknown reason. As I was about to straighten up from the left hand turn, I heard a loud scream, then a man knocked on this door shouting “stop the bus” which I did immediately. I opened the front doors to be told that a woman pedestrian is squashed between the bus and the railings.”
[10]The defendants’ case on liability was that the accident happened in a quite different way from the way described by the claimant. Mr Page, who was a driver from a different bus company, gave evidence that he was following immediately behind Mr Votier’s bus. His recollection was that the claimant was crossing the exit road by the zebra crossing. Instead of staying on the crossing to arrive safely at the footway where she would be protected by the railings, she cut across and came up behind the bus which was either moving very slowly or was stationary because it was blocked by a bus ahead; and it was in that way that she came between the rear near side of the bus and the railings so as to be in a position to be squashed by the bus.[11]Mr Page said that the bus driver never had a chance to avoid the collision. The defendants’ case was that there were at all material times clear prominent multiple warnings on the notices on the railings all around the bus station.[12]In cross examination the claimant admitted that she had not come straight from the library to the bus station at 8:00pm because in fact the library had closed at 5:00pm. She admitted that she in fact spent the missing three hours with some young man who was not her boyfriend, although she did have a boyfriend and therefore had some reason for not telling the truth. She also denied that there were warning signs on the railings but the judge found, as was obviously the case, that, from the photographs, the warning signs were in place at the time.[13]The judge accepted Mr Page’s evidence -- that is the driver behind -- that his bus was stationary behind Mr Votier’s bus and that Mr Votier’s bus was stationary or moving only very slowly because there was a bus in front. The judge found that Mr Page’s evidence was to be preferred on the question of the circumstances of the accident, that the claimant had been lying about the piece of paper blowing into the road and that she had moved from the zebra crossing to the back of the bus and had been squashed against the bollard. The judge found that the driver had been negligent. The essence of the decision can be summarised in this way.[14]First, there were two important hazards for the bus driver. One was the difficulty of negotiating the corner without hitting or mounting the kerb or striking the bollard; and second was the difficulty and hazard of the manoeuvre being increased by the fact that jaywalkers might be in the carriageway outside the protection of the railings, because it was well known to bus drivers that pedestrians did not keep to the pavements. Second, although there was a blind spot at the rear of the bus it did not extend to the rear nearside of the bus in the area where the impact occurred. Third, the driver accepted that he had not seen the claimant before the accident. Fourth, the driver had not mentioned checking his nearside mirror at the time when he gave his statements to the police and the employers in December 2002. His evidence in the witness box and in his witness statements was that he was concentrating on his nearside rear-view mirror as well as on the number 381 bus in front. But the judge preferred the account in his two contemporary reports to the police officers and his employers, and the judge found that his recollection of checking his nearside rear-view mirror at the time was not reliable, or at least not as reliable as his statements to the police and his employers. Fifthly, the driver fell below the standard of a reasonably competent bus driver in colliding with the claimant, where she was there to be seen when he had not checked his nearside rear view mirror sufficiently frequently in relation to the foreseeable hazard known to him of pedestrians walking on the wrong side of the railings. Sixth, the claimant herself was negligent and he put her contributory negligence at 50 percent.[15]The main points made on the appeal by the defendants are these. First, there was no reason for the driver to expect a pedestrian to take the extremely dangerous path which the claimant had taken. Secondly, the judge’s finding that the driver, in the seconds leading up to the accident, should have used his mirror to see the claimant and then somehow have acted to avoid the accident ignored the other far more obvious and real dangers that were already apparent to him in case the bus in front suddenly stopped. Thirdly, if he had taken his eyes off the back of the bus in front there could have been a very serious accident indeed. Fourth, the finding of fact made by the judge that he had failed to check in his near side mirror in the moments leading to the accident was unsafe. Fifth, even if he did not check in his nearside mirror he did not breach his duty of care because his main duty was to check the position with regard to the double-decker in front. And sixthly, the judge fell into error when he failed to give any or sufficient weight to the speed and direction at which the claimant crossed the road and approached the bus driven by Mr Votier.[16]The claimant’s position is that the judge who saw, heard and assessed the witnesses was in the best position to take a view, not only as to the facts but also to evaluate the evidence in order to come to a conclusion as to whether the driver had been negligent, and that there was no error to which the defendants could point which would justify upsetting the decision of the judge. In particular the presence of the claimant at the place of impact was foreseeable. The driver failed to see her. If he had checked his mirror the very great probability is that he could have seen her. Just because the claimant lied, that did not mean that the judge should have thrown out her case. It was his duty to examine the evidence as a whole and to reach a decision which reflected his view, and his findings on the facts and his evaluation of the facts could not sensibly be regarded as perverse.[17]I come to my conclusions. This court will not readily interfere with a judge’s evaluation of what is reasonable in the circumstances. The best known and most modern authority to this effect is the well-known decision of this court in Assicurazioni Generali SpA v Arab Insurance Group [2002] EWCA Civ 1642, [2003] 1 WLR 577. But in my judgment the judge’s conclusion cannot stand.[18]This was a case where the claimant’s case was that the bus had driven past her before crushing her against the outside of some metal railings. On her case, the front of the bus had driven right past her, allowing her to catch a glimpse of the bus driver as the front of the bus went past. Her case was discredited at trial. Mr Votier’s bus was already well into completing its difficult left turn manoeuvre. The claimant was not on the corner as he started the manoeuvre because otherwise he would have seen her at the front of the bus. The whole manoeuvre took only seconds.[19]I have some difficulty with the judge’s approach of rejecting the claimant’s case as to how the accident happened and what the negligence was and in substituting a wholly different finding as to what happened, but I do not rest my conclusion on that point. I consider that the judge did not take sufficient account of the following matters. The first is that the claimant was probably moving (and may indeed have been moving fast) at the time of impact. The second is that, even if pedestrians do use the carriageway, Mr Votier had no reason to think that there would be anyone at the near side rear of his bus. He had just driven round the corner with the front of his bus and there had been nobody there to be seen. There was no reason for him to expect a pedestrian to take the extremely dangerous path taken by the claimant.[20]The third point is this. I would accept the submission for the claimant that it is not open for this court to interfere with the judge’s finding and that the driver did not look in his rear view mirror even though the only reason, it seems, for rejecting his evidence and finding it unreliable was simply that this point was not mentioned in the contemporary reports. But I accept the submission for the defendants that the judge’s finding that he should have carried on keeping an eye in his nearside mirror is a counsel of perfection and it ignores the realities of the situation. There was a far more obvious and real danger. He was following another bus. He had taken a wide sweep as usual at the bend in order to get round the corner and was keeping an eye on the bus in front in case it suddenly stopped. He had passengers in his bus. Buses frequently leave the bus station at about the same time as other buses and have to queue to get into Peckham High Street. If he had taken his eyes off the back of the bus immediately in front, there could have been a very serious accident indeed, with the large exposed glass frontage of his bus crashing into the rear of the bus in front. Given the nature of the exit, that must have been a real risk. It seems to me that an overall evaluation of the circumstances would lead inevitably to a finding that there was no negligence, particularly in view of the extraordinarily dangerous action of the claimant and the need to keep an eye on the bus in front. This was not mere jaywalking. He would have had to keep a constant lookout in the mirror to have seen the claimant and that in itself would have been a careless act, given the proximity of the bus in front. I accept the submission for the defendants that, taking into account human reaction times for responding, the reality of the situation where the turn takes only seconds is that, given the driver’s concentration on the vehicle in front, even if he had by chance looked up and seen the claimant in his nearside mirror after pulling away, it would have been just as the accident was taking place. On the judge’s finding it would have required constant but dangerous attention to the mirrors to have prevented the accident.[21]I would therefore allow the appeal and find that the defendants are not liable.[22]I agree. I have nothing to add.[23]I also agree. The judge, as my Lord as has said, has in effect sought to impose a counsel of perfection on the bus driver Mr Votier. Such an approach I think distorts the nature of the bus driver’s duty which was of course no more nor less than a duty to take reasonable care. 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.[24]In this case in fact the judge’s conclusion is flawed for an additional reason. The requirement that the driver during the manoeuvre in question should frequently check the nearside mirror would, if fulfilled, itself have created a serious hazard for the reasons my Lord Lawrence Collins LJ has given.

Order

Appeal allowed.

Cited in 25 later judgments

and 16 more of the most senior