Smith v Nottinghamshire Police [2012] EWCA Civ 161

[2012] EWCA Civ 161

Case No B3/2011/0230

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM NOTTINGHAM COUNTY COURT

MR RECORDER HERBERT

8NG06039

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 23/02/2012

Before

LORD JUSTICE WARD

LORD JUSTICE LLOYD

LORD JUSTICE KITCHIN

Between

Rebecca Ann SmithAppellant

The Chief Constable of Nottinghamshire PoliceRespondent

Mr John Leighton Williams QC and Mr Richard Burns (instructed by Bhatia Best Solicitors) for appellant

Mr Mark Turner QC and Mr David Boyle (instructed by Kennedys LLP) for respondent

Hearing Hearing date: 24th October 2011

Judgment

[1]The centre of Nottingham seems to be quite a lively place on a Friday night. The young – and even the not so young – flock to the bars and restaurants in the Castle Wharf area by the canal and spill onto the pavements in high spirits, some the worse for drink. On 25th February 2005 one of the revellers was 16 year old Rebecca Smith. She had been enjoying a good night out with her friends when disaster struck. While crossing Canal Street at 10 minutes past 10 she was struck by a Volvo police car responding to an emergency call. She may be lucky to be alive but her life is forever blighted by the catastrophic injuries she suffered that night. In the trial of the issue of liability in her claim against the police for substantial damages in excess of £1million, Mr Recorder Herbert, sitting in the Nottingham County Court on 14th January 2011, found her to be three quarters to blame. Was that the right apportionment? Rebecca appeals and says, “No.” Was he even right to find the driver of the police car negligent at all? The Chief Constable appeals and he too says the Recorder got it wrong.

[2]Canal Street is a main thoroughfare running east to west through the centre of Nottingham. As Canal Street leaves the A60 at its eastern end, it is 5 lanes wide. Traffic flows one way. It passes under the tram viaduct at a junction with Middle Hill controlled by traffic lights. The stop line at this junction was used by the Accident Reconstruction experts as the datum for measurements to the point of the accident. The road passes the Nottingham Crown Court on the left (the southern side) and the Broadmarsh Bus Station and car park on the right. Just before the junction with Carrington Street the nearside bus lane filters left into Carrington Street. There is a parallel bus lane allowing the buses to filter right off Carrington Street in order to cross Canal Street into the bus station to the east of Carrington Street. This crossing is controlled by traffic lights and there is a stop line in Canal Street before the bus lane which crosses it. This stop line is 125 metres to the west of the Middle Hill stop line. Approximately 30 metres beyond this stop line is a pedestrian crossing some 4 or 5 metres wide, then a cycle track, then Carrington Street itself and, to the west of Carrington Street a second pedestrian crossing. One begins to cross Carrington Street itself about 22 metres after the stop line. On the far side of Carrington Street there is a book shop on the north-west corner and fixed to it or near it is a CCTV camera looking to the east and recording the passage of traffic along Canal Street from just before the stop line at the Middle Hill junction and to a point where traffic goes out of view of the camera just before the stop line before the bus lane.

[3]On the southern side of Canal Street to the west of Carrington Street is a pine furniture shop, a public house, an open forecourt behind which is a restaurant, the Canal House Restaurant and Bar, and then moving towards Castle Wharf another bar, the Via Fossa, and beyond that a cash machine which is 98 metres from the second pedestrian crossing. There are 3 sets of railings on the southern side of Canal Street which limit access from the footway onto the carriageway. If one stands on the pavement outside the Canal House Restaurant one can see a portion of green traffic light on the south-western corner of the junction controlling traffic in Carrington Street travelling to the north. At night Canal Street is lit by high pressure sodium lighting providing adequate illumination to reveal pedestrians in the road. The road itself is 12.5 metres wide divided into 4 lanes each approximately 3 metres wide. The traffic continues to run one way. The road is subject to a 30 mile per hour speed limit.

How did this accident happen?

[4]PC Avann, the driver of the police Volvo, gave evidence. He was a grade 1 advanced police driver with a clean driving record, authorised to drive high-powered police vehicles on response and pursuit duties. He was on mobile patrol accompanied by PC Byrne in a fully liveried police Volvo. When driving in Canal Street about level with the Nottingham Crown Court, or even earlier, he received a call to attend an incident where 3 men were alleged to be dragging another from his vehicle. It being an event where there was a risk of injury to a person, he responded to the urgency and sped away to attend it engaging the blue lights and, according to him, for it was a fact in issue, switching the separate switch to sound the police siren. As it happens there was a police van some 6-7 seconds and approximately 100 metres ahead of him as the CCTV film showed. The police transit was also travelling in the third lane of Canal Street at about the same speed or perhaps slightly slower than the police Volvo. Other witnesses describe that speed as between 40-50 mph as it passed along that section of Canal Street after the Carrington Street junction. The Accident Reconstruction experts did not disagree with that speed bracket.

[5]As PC Avann approached the Carrington Street junction, the lights were showing red as they were for the police transit van which drove through the junction against the red signal. He was unable to say at what speed he was travelling on his approach to the Carrington Street junction or, indeed, in the moments immediately prior to the collision. He says he slowed down to “approximately 10 mph”, observed the junction openings and pedestrian crossing, considered it was safe to continue as the crossing was clear and he could see into the junction so he began “to accelerate away from the lights gradually”. The road ahead was clear and visibility was good and he could see clearly across all four lanes. There were no parked or waiting vehicles on his nearside. He was now in the second of four lanes from the nearside. He was aware of the presence of the public houses to the south side of Canal Street and that was why he was using lane 2 so as to pass through as far away from the southern footway and any pedestrians thereon as reasonably practicable. He knew there were a large number of pedestrians moving about on both sides of the road and he knew some might be the worse for drink.

[6]He said, “As I was making my way along Canal Street a group of pedestrians ran out from the nearside footpath diagonally crossing only a matter of feet in front of the patrol car. The group appeared to be completely unaware of my presence and had run out without even looking.” He applied his brakes and steered to his offside towards lane 3. He said, “Only a few feet in front of me I saw a lone female running from my nearside directly towards the front of the car. She paused for a moment in front of the car and looked straight at the patrol car. Then for no reason she ran forward again directly into the path of my patrol car. I could not have done anything to avoid colliding with her. I was already braking and steering towards lane 4 having avoided others crossing.” In his evidence in chief (p. 724) he said he passed the first three pedestrians on his nearside.

[7]In his oral evidence he described slowing down before the junction with Carrington Street and probably moving down into second gear. He found it difficult to indicate where he began to accelerate again but did say he would only have accelerated away once he had confirmed in his own mind that the Carrington Street junction was clear and it was safe for him to proceed. He said he would have commenced to accelerate again before reaching the first pedestrian crossing because by that stage he would have been aware it was safe for him to proceed through the red light. He said (p. 726) that Miss Smith stood on the white line markings between lane 3 and lane 4. “I thought Miss Smith was going to remain where she was … seemingly at the very last second, Miss Smith took another pace forward, the car struck her and the next thing that happened is that she hit the windscreen on the passenger side …”. It is common ground that the front nearside headlight struck Rebecca, flinging her up onto the bonnet and into the windscreen in front of PC Byrne and then causing her to rotate upwards to land on the roof of the police car where she lay deeply unconscious with a depressed comminuted skull fracture of the right parietal bone, fractures of the right frontal mastoid through the right orbital roof in a coma with a Glasgow coma score of only 3/15.

[8]Cross-examined, PC Avann said (p. 255) “simultaneously all four people ran into the road. … all four, like a line, straight out. I was past the [Carrington Street] junction [when I first saw any one of the Group].” He agreed that he had seen and read the Nottinghamshire Police Response and Pursuit Driving Policy.

[9]Despite opposition, the Recorder allowed the defendant’s application to put in evidence a statement made by PC Byrne. It had been expected that he would give evidence by video link from abroad. Allowing this hearsay was a permissible exercise of the Recorder’s discretion. He confirmed that PC Avann had activated both the audible and visual warning equipment. He confirmed that as the police Volvo approached Carrington Street PC Avann slowed the car to a speed where he could stop in a distance he could see to be safe but there were no vehicles approaching from the nearside nor any pedestrians crossing or about to cross from either side and so he said PC Avann accelerated “progressively from the lights in lane 2.” He then said that “within seconds of passing through the lights I was aware of a group of pedestrians running over the road to the front from left to right. PC Avann started to brake and move to the offside allowing the group to pass safely in front.” He then looked to his nearside and saw a young female running after the group. She appeared to have her head down. She appeared to hesitate while safely in lane 2 then ran again attempting to cross in front of the police car. The distance at that stage would only be a matter of feet from the front nearside bumper. “The girl then realised that she had run in front of us and looked up. We briefly had eye contact for less than a second as she stepped in front of us.”

[10]The Recorder had before him reports from the claimant’s and defendant’s expert Accident Reconstruction Engineers and their agreed joint statements. There was no substantial disagreement between them. They were not called to give evidence.

[11]On the basis of the expert analysis of the evidence found at the scene and the damage to the police Volvo, the judge made the following findings of fact at [77]: i) The collision occurred at about 23 metres east from the front of the police Volvo’s position post impact. That also locates the collision about 30 metres beyond the second (most westerly) pedestrian crossing at the Carrington Street junction. ii) At impact the claimant had reached a position about 8 metres from the southern kerb line and so was about in the middle of lane 3. iii) At impact the police Volvo was travelling at a speed in the range of 35-40 mph. iv) At impact the police Volvo was both braking and swerving to the right and following a path from lane 2 into lane 3 before finally coming to a stop in lane 4. v) Before braking and swerving to the right the police Volvo was travelling at a speed in the range of 45-50 mph. vi) At the moment of impact the claimant was moving “quickly” across the path of the car. The Recorder relied on the experts who said:

“We agree that the alignment of the damage to the police car, in combination with its path across the road, suggests that Rebecca Smith was moving quickly across the path of the car at the moment of impact but we also agree that this does not show how she had moved across the road up to that point.”

How did the claimant cross the road?

[12]A large number of witness statements were taken by the police after the accident. A number were put forward by the defendant’s solicitors who asked whether any could be agreed. The claimant’s solicitors identified 5 witnesses whose statements they were prepared to agree. The Recorder therefore treated the statements of those witnesses on the basis that each witness had been called by the defendant to give evidence, had given evidence in accordance with his or her witness statement and had not been challenged on that evidence. I can see no error in the Recorder proceeding in that way. Because other witnesses could no longer be traced by the time of the trial hearsay notices were served on behalf of the defendant in respect of statements made from 4 other witnesses. In their reports the experts had referred to the evidence in other witness statements given to the police including statements given by 3 friends of Rebecca who were with her that night. The Recorder overruled the objection taken by Mr John Leighton Williams Q.C. for the claimant and ruled that he could properly take that evidence into account as hearsay evidence but he added:

“However having made that decision I have to say I have not found that evidence to be any help in relation to the material issues which I now have to decide in this case.”

The claimant called 2 witnesses.

[13]Dealing first with the agreed evidence, Mr Benjamin Fenton was a third year undergraduate who was out with his fellow students. He was near the cash machine. He was aware of the police van passing and as he turned back to look down Canal Street he saw the police Volvo with flashing lights and a siren sounding. As he watched he saw “a lone female walking from the nearside lane to the middle lane when I realised the police car was also in the middle lane so was she. I then saw the girl start to run from the middle to the third lane. At the same time the police vehicle had also moved to the third lane.” He estimated the speed of the police car to be 40-50 mph. His impression of the accident was that “The police officer driving the police car should have noticed the girl in the middle of the road and stopped. It appeared to me that he did not slow down, but attempted to guess which way she was going to move, taking evasive action but not guessing correctly.

[14]Michael Freeman was another Nottingham University student who was also at the cash machine. He could recall the passing police van and was then aware of the second police car with its flashing lights on the roof though he could not remember hearing whether the siren was working or not. He became aware of a pedestrian in the road positioned as he looked back on the scene on the left hand edge of the second lane from the right but he had not seen how the pedestrian got to that point. She seemed to be “walking quickly but not running.” He was unable to say who reacted first, the police car or the pedestrian. “The pedestrian suddenly became aware of the police car and “darted” towards the far side of the road in the direction of the dark car park … At the same moment the police car became aware of the pedestrian and took evasive action, swerving to the driver’s right … As I watched I saw the police car strike the pedestrian on its front left-hand side.”

[15]Kasid Hassan was driving his car along Canal Street and stopped by the cash machine. The police van passed. Seeing another set of blue lights in his mirror, he looked over his shoulder and saw a girl crossing on her own in the road. He had seen her earlier “with two guys and another girl”. They were messing about, one guy on the other’s shoulders and the girls having a laugh”. The police car was moving forward as she was crossing the road. She looked like she was “marching across, not running, more like a fast walk”. The police car had its blue lights on. He does not mention the siren. It was doing 50-60 mph. But “you couldn’t miss it”. “She was heading towards the police car, and the car went to its right to avoid her. If she had stopped where she was the car would have missed her but she seemed to make a ‘leap’ like a short of jump, towards the car. The police car was braking.”

[16]The other two witnesses whose statements were agreed took the matter no further and the Recorder did not need to refer to their evidence.

[17]Of the witnesses whose statements were subject to the hearsay notices, Graham Osborne, another at the cash machine, saw the blue lights and “believed” its siren was sounding. He was aware of a silhouette in the middle of the four lanes. Immediately the police car started to take the avoiding action by moving to the offside, “the female appeared to start to speed up” and in doing so moved further into the path of the police vehicle. “It was an unfortunate set of circumstances and had one of the parties not taken avoiding action then I don’t think that she would have been hit.”

[18]The other three hearsay witness statements placed before the Recorder added little.

[19]The claimant called two witnesses. The first was Mrs Joan Matthews, a self-employed consultant advising on self-development matters. The judge considered her to be “confident witness”. “She was clearly honest and doing the very best she could to recall what she remembered of the accident.” She had been in the Canal Street Restaurant set back by a courtyard from Canal Street, so, very roughly, about opposite the point of impact. She did not see the claimant step off the kerb but noticed her in the first carriageway crossing the road. In her police statement she said, “She wasn’t walking across the road very fast, in fact I would describe it as ambling across.” She then became aware of the presence of the police vehicle travelling along the road. “It just seemed to have appeared on the road between the girl and Carrington Street. I do not know where this vehicle came from, it was just there.” “It just seemed to suddenly turn up, whistled in, it was there, just behind her.” “The speed of the vehicle was alarming. It seemed like it was going “like a bat out of hell, at such a rate, it seemed to be doing 70 mph. Very fast.” Under cross-examination she agreed 70 mph was probably an exaggerated estimate. At some point it seemed to move over towards its right and her impression was that she thought it was being driven close to the girl to frighten her for being in the road as she was certainly not then expecting a collision between the two. She put this graphically in her witness statement:

“I remember thinking to myself, what the fuck is he doing. I would spontaneously express myself in that way if a situation angered me.”

In that witness statement she described the claimant as “sauntering as she made her way across the road into the second lane. She was alone and definitely not running.”

[20]Cross-examined by Mr David Boyle, for the defendants, Ms Matthews said that the claimant was walking or meandering slowly across the road. She had travelled between a half and three quarters of the way across the road whilst in her view. The claimant moved across in front of the car which she accepted might have been trying to avoid colliding with the claimant.

The Recorder said this of Ms Matthews:

“64. Although I have no doubt that Mrs Matthews was an honest witness and doing the best she could to outline the facts of the accident I formed the view she was somewhat muddled in her evidence … I find that Mrs Matthews did not see the claimant in the road until she had reached the second lane. It was only at that stage she saw the claimant and then almost immediately the approach of the police Volvo. On that basis I cannot accept her evidence that the claimant was ambling, wandering or meandering across the road to that point. It is clear from the other evidence that the claimant did not meander but in fact ran or darted towards the north side of the road in an attempt to avoid the approaching car.”

[22]I confess I am a little troubled by that last observation by the Recorder. To repeat that other evidence, Mr Fenton said she was walking across the road but started to run from the middle to the third lane; Mr Freeman said she was walking quickly but not running and then “darted towards the far side”; Mr Hassan spoke of her “marching across, not running, more like a fast walk” with a “leap like a sort of jump towards the car” and Mr Osborne who saw her at the last moment when she “appeared to start to speed up”. To be fair to the Recorder, he did refer to that other evidence later in his judgment.

[23]The second witness called by the claimant was Mr Adam Chir, another student waiting by the cash machine. He saw the Volvo braking hard from a speed he estimated between 40-50 mph. The vehicle was steered as it slowed from the central lane to the fourth lane. He did not see why the police vehicle behaved in that way until he saw a female right in the middle of the road in front of the police car. She appeared to be panicking which way to go as the police vehicle was changing lanes to avoid her. However both the vehicle and the female chose to travel into the same lane and the police vehicle hit her more or less centrally. Cross-examined he spoke of the pedestrian moving “relatively fast” to get out of the way of the police car and of her having “ran” in front of the police Volvo whilst it was braking.

[24]Mr Christopher Anderson, a consultant forensic engineer, prepared a long report for the claimant with which the defendant’s expert, Mr Peter Sorton, was in substantial agreement. Their joint report includes these material matters, in addition to those to which reference has already been made:

“4.4 We agree that if Rebecca Smith had initially walked into the road before running, she would certainly have been in the road for more than 2.5 seconds prior to the collision and possibly up to 4 or 5 seconds prior to the collision. … 5.1 We agree that pedestrians entering the road or in the road near the accident location would have been visible to the attentive motorist approaching through the junction with Carrington Street. …. 6.4 We agree that if, in the circumstances, Rebecca Smith had been converging upon the path of the car for at least 2.5 seconds (we agree that Rebecca Smith was probably in the road for longer than 2.5 seconds) and if the police car had been travelling at about 40 mph then if instead the officer had maintained heavy braking in response to the pedestrian, the collision could have been avoided. … 7.2 We agree that by the time the car reached the point of collision it would have moved laterally about 3.5 to 4 metres and such a swerve would have taken at least 1.3 to 1.6 seconds. We agree that if swerving to the offside PC Avann had also applied emergency braking and the car was still travelling at 35 to 40 mph at impact, its speed must have been around 45 to 50 mph prior to braking. That is not consistent with the car being slowed substantially at the Carrington Street Junction. … 8.1 We agree that Rebecca Smith would have been able to see the approaching car, ought to be aware of its approach from a substantial distance, sufficient for her to avoid entering its path.”

How did the Recorder decide the case?

[25]Having briefly outlined the facts of the collision and discussed the evidence before him, he addressed the law, saying correctly that emergency vehicles are expressly exempted from the criminal process relating to speed limits and traffic lights. Then he added:

“34. … Those provisions do not however sanction negligent driving. The duty to take reasonable care remains. Nonetheless I bear in mind the words of Judge LJ, as he then was, in Keyse v Commissioner of Police of the Metropolis and Robert Jeremy Scutts [2001] EWCA Civ 715 at paragraphs 29 and 31 where he said: “29. In my judgment, even in an emergency, a driver is required to drive reasonably carefully in all the circumstances. One significant feature of such cases where the vehicle in question is deployed by one of the emergency services, is that the driver is normally entitled to assume that other road users will not ignore the unmistakable evidence of its approach, and where appropriate, temporarily at any rate, will use the road accordingly. Pedestrians can usually be expected to follow the relevant advice in the Highway Code. … 31. … although drivers should allow for the unexpected when they are at the wheel of a car, it would inhibit the valuable work done for the community as a whole, if drivers in the emergency services were not allowed to drive their vehicles on the basis that pedestrians would recognise their warning lights and sirens and give them proper priority by keeping out of their paths.”

He noted that the Highway Code warned pedestrians to “keep off the road” if the police approach using flashing blue lights and/or sirens. “29. In my judgment, even in an emergency, a driver is required to drive reasonably carefully in all the circumstances. One significant feature of such cases where the vehicle in question is deployed by one of the emergency services, is that the driver is normally entitled to assume that other road users will not ignore the unmistakable evidence of its approach, and where appropriate, temporarily at any rate, will use the road accordingly. Pedestrians can usually be expected to follow the relevant advice in the Highway Code. …

[26]So the Recorder formulated the appropriate test for the duty to take reasonable care in a case such as this in the following terms:

“36. … Would it have been apparent to a reasonable driver armed with common sense and experience of the way pedestrians are likely to behave in circumstances such as were known to the driver to exist at or around the time of the accident that there was a possibility of a danger emerging to which he should take some action such as for example slowing down or changing lanes or both. That duty should be tested not by reference to what the claimant actually did but by what sort of conduct any pedestrian at any moment in time the driver ought reasonably to have anticipated and to consider what course of action he would have had to take if he was going to make quite certain that no accident would occur.”

[27]In the light of the criticisms made of this approach made by Mr Leighton Williams, let me comment about it immediately. As Lloyd L.J., who was a member of the Court in Keyse pointed out in the course of argument, Keyse was a completely different kind of case. The accident took place in a residential area which was not very well lit. The claimant would not have shown up “particularly well”. The impact happened halfway across the car’s lane. Judge L.J. pointed out that none of the road traffic regulations sanction negligent driving or indemnify the negligent driver of a vehicle on emergency duty against civil liability. “The duty of the driver to take care remains undiminished.” The Recorder cited part of paragraph 31 but it is useful to see the sentence which precedes that citation:

“31. … It would not have been realistic to expect him to anticipate that a pedestrian in dark clothing would hurry across the road, directly across his path, at an angle away from him, without a second glance, when the traffic lights were showing green to the vehicle on its well advertised emergency journey, and to have driven at a speed at which he could have avoided this unanticipated risk. … although drivers should allow for the unexpected when they are at the wheel of a car, it would inhibit the valuable work …”

A close analysis of the case demonstrates, therefore, that it was very much a fact-specific decision “depending on all the circumstances” where “normally” the driver may assume pedestrians may not ignore him and where pedestrians can “usually” be expected to follow the advice of the Highway Code. I do not disagree with a word of that but the comments should not be elevated into a statement of universal principle. Each case must be judged on its own particular facts and circumstances. The driving by PC Avann was undertaken in the emergency to attend the scene of a possible assault. Preventing that assault is laudable but not at the cost of an avoidable risk of catastrophic injury caused by negligently driving to the scene of the assault.

[28]As for the test formulated by the Recorder, it would have been more appropriate to arm the driver with the experience of the way pedestrians are “liable” to behave rather than the way they are “likely” to behave, especially since, as he said, the “possibility” of danger emerging is something which may reasonably have to be anticipated and guarded against.

[29]Turning now to the facts found by the Recorder, I have already recited his findings made in paragraph 77 (see 11above). He went on to make these further findings:

“79. … As the experts use the phrase “approaching through the junction”

I find that the attentive motorist would have been within the bounds of the junction before a pedestrian at the accident location would have been visible. I take that to amount to a distance from the accident location in the region of 45 metres. … 81. Although I find P.C. Avann to be an honest witness doing the best he can to describe the circumstances leading up to the collision I regret I cannot accept his evidence of what occurred. None of the witnesses save for P.C. Avann and P.C. Byrne refer to a group of pedestrians running across Canal Street from south to north as the police Volvo approached. … I find on the evidence before me that the only person crossing the road at the time of the collision was the Claimant. That is not of course to say that others had not crossed Canal Street between the police transit and the police Volvo. However any pedestrians who did so cross did not in any way interfere with the police Volvo’s approach. I also find so far as it may be material that the Claimant was the worse for drink. … 83. I also find as a fact that on receiving the immediate response call P.C. Avann activated not only the police Volvo’s flashing blue lights but also the vehicle’s siren. … the siren would have given greater and earlier warning of its approach to other traffic including pedestrians. 84. I cannot accept P.C. Avann’s evidence that on his approach to the Carrington Street junction he slowed the police Volvo to “approximately 10 mph”. That is in my view wholly inconsistent with the CCTV evidence and is also in my view inconsistent with the Volvo travelling at a speed in the bracket 45-50 mph before braking prior to the collision. … I find that in so far as there was any slowing, it was only by a few miles per hour which would be sufficient to allow P.C. Avann to see that there was no approaching traffic from Carrington Street and no pedestrians using the crossing at the Carrington Street junction. Having regard to P.C. Avann’s visibility towards that junction I find there would be no need for him to slow to the extent he suggests. 85. I have already referred to my finding that the claimant moved quickly into the path of the police Volvo immediately prior to the collision. However I do not find the Claimant ran across Canal Street before reaching approximately the middle of lane 2 and before she moved quickly towards the collision. The evidence from the various witnesses who saw the Claimant move across Canal Street into lane 2 is that she was walking. I do not accept Mrs Matthews’ evidence when she refers to the Claimant meandering, ambling or walking slowly to that position. She did not see the Claimant before she reached lane 2. I am assisted in how the Claimant reached the middle of lane 2 by the “agreed” evidence of Mr Fenton who refers to the Claimant as “walking” from the nearside towards the middle lane and by Mr Hassan who refers to the Claimant as “marching across” Canal Street “not running more like a fast walk”. I find the probability is that the Claimant’s three companions had already crossed Canal Street and thus there would have been no purpose in her crossing slowly. I therefore find that the Claimant walked quickly from the south kerb to the point in lane 2 where she suddenly became aware of the police Volvo. She then paused for a fraction of a second before moving more quickly, whether by darting or running towards the north kerb in an attempt to avoid the collision. 86. I note Table 5 in Mr Anderson’s report … wherein he sets out times for the Claimant to have been in the road in defined circumstances. He states that assuming the Claimant walked quickly to the middle of the second lane then immediately ran to the point of impact her time in the road to that point would amount to some 3.4 seconds. I add thereto a time in the region of half a second to allow for the Claimant to pause on seeing the approach of the Police Volvo before moving more quickly into the collision. I therefore find the Claimant is likely to have been in the road prior to the collision for somewhere in the region of 4 seconds. … 88. … the experts agree that the hazard to which P.C. Avann responded must have been evident to him for more than 2 seconds and more likely around 2.5 seconds before the collision. 89. Allowing for the fact that the Claimant was in the road for approximately 4 seconds and P.C. Avann reacted to the Claimant as a hazard between 2.2 and 3.2 seconds and as the experts agree probably 2.5 seconds before the collision, I find that P.C. Avann must have responded to the Claimant as a hazard in the road when she was in about the centre of lane 1. 90. On the basis of my finding that the Volvo’s speed at impact was in the bracket of 35-40 mph and that it was braking for some distance prior to the collision, P.C. Avann must have responded to the presence of the Claimant in the road when the police Volvo was approximately 45 metres or perhaps more from the point of impact. That calculation is made on the basis that travelling at 40 mph a vehicle travels 17.88 metres per second and so in 2.5 seconds will travel 44.7 metres. As it happens 45 metres from the point of impact positions the police Volvo in approximately the centre of the first pedestrian crossing and approximately where the experts agree that the pedestrian entering the road or near the road near the accident location would have become visible to the attentive motorist. I therefore find that at the time of this accident P.C. Avann was an attentive motorist and was clearly keeping a proper lookout for any pedestrian that might be crossing the path of his approaching car. … 92. I do not find P.C. Avann failed to keep any or any proper lookout. I find he was keeping a proper lookout and observed the Claimant in the road as soon as was reasonable. 93. There was nothing unsafe in his driving through that junction against the red light. 94. P.C. Avann’s braking and swerving to the right was clearly done in the agony of the moment and in an attempt to avoid the collision. … The Claimant was attempting to move out of the way of the approaching police Volvo. Had the Claimant remained in the second lane, the collision would have been avoided. 95. … I take the view that the real issue in this case is one of speed. I have already made a finding that prior to reacting to the Claimant’s presence in the road and so prior to undertaking any braking the police Volvo was travelling at a speed in the brackets of 45-50 mph. The experts agreed that if the Volvo had been travelling at a speed of 40 mph and P.C. Avann had reacted to the Claimant at the same moment in time as in fact he did then maintained heavy braking in response to the Claimant’s presence in the road, the collision would have been avoided. … 97. I infer [from P.C. Avann’s evidence that he slowed to approximately 10 mph] that P.C. Avann himself believed that it was necessary to slow significantly on the approach to this junction to ensure the junction itself was clear and also that the section of road beyond the junction was clear. Had P.C. Avann in fact slowed to that speed I find he would have been travelling through the Carrington junction at less than 40 mph so reacting to the presence of the Claimant when he did the collision would have been avoided. 98. In the light thereof I find P.C. Avann was negligent in travelling at a speed of between 45 and 50 mph through the traffic light controlled junction with Carrington Street into the section of Canal Street where the collision occurred.”

[30]Then he turned again to the law and referred to Baker v Willoughby [1970] 2 W.L.R. 50, ([1970] A.C. 407), Lunt v Khelifa

[2002] EWCA Civ 801

, Tremayne v Hill [1987] RTA 131, Eagle v Chambers

[2003] EWCA Civ 1107

and in the light of those authorities approached the question of contributory negligence on the following basis:

“100(i) The court will have regard not only to the relative blameworthiness but also to causative potency so that a motorist, at the wheel of a potentially lethal weapon, will often bear a greater share of the blame than the pedestrian. (ii) There is no fetter on the Trial Judge who may, depending on all the circumstances, apportion blame in whatever shares he deems to be appropriate as in any other personal injury case. (iii) The citation of authorities, with a view to influencing the Judge in determining apportionment in a road traffic accident case is to be deprecated as each case turns upon its own facts. (iv) The Court of Appeal will be very slow to intervene where the Trial Judge as here has the benefit of seeing and hearing the witnesses, uses his own local knowledge and applies common sense in reaching an appropriate apportionment of the facts of the case.”

[31]He did not understand Baker v Willoughby to be a case where the court was denying that a pedestrian may sometimes be very much more to blame than a motorist. It must depend on all the circumstances. Lunt v Khelifa also depended upon its particular facts. Tremayne v Hill wasa completely different case from the matter before him. He distinguished Eagle v Chambers by commenting that “In this case the Claimant did as I have found ‘suddenly move’ into the path of the approaching car.”

[32]It did not seem to him that the fact that the claimant’s alcohol level was in excess of the legal limit for motorists in any way affected the blameworthiness of the claimant.

[33]So he concluded:

“106. What is clear is that the approaching police car was plain to see. Its approach was also announced by its blue flashing lights and its sirens. The Claimant should have seen the car approach and should not have attempted to cross before it had passed. Blue flashing lights and sirens are intended to alert pedestrians and other traffic using the road to the approach of the vehicle on an emergency response. The Claimant should have given the approaching police Volvo priority. She should have kept out of the way. I take the view that by attempting to cross Canal Street in front of the approaching police Volvo the Claimant was showing a reckless disregard for her own safety.It does not appear the Claimantlooked for traffic emerging from her right which was of course the only direction from which traffic could emerge. By contrast the only criticism to be levelled against P.C. Avann is that he was travelling between 5 and 10 mph in excess of what I find to be a safe speed for this section for the road. 107. In the circumstances of this case I conclude that the claimant was clearly negligent and I assess her negligence and responsibility for this accident at 75%. The Claimant will therefore recover 25% of her damages to be assessed.”

Was the Recorder wrong?

[34]Mr Leighton Williams complains in his first ground of appeal that the Recorder failed to keep an open mind on the issue of contributory negligence. When the question arose in the course of his opening (see p. 604) this exchange took place:

“Mr Recorder Herbert: If primary liability is established this is a case in which, it seems to me, unless I am persuaded to the contrary, that there would be a significant finding of contributory negligence. Mr Leighton-Williams: There would be a finding of contributory negligence, but I would hope to persuade your honour on the word “significant”

. Mr Recorder Herbert: That is my initial reaction. But primary liability has to be established first of all.” We all have initial reactions to the case before us but it is not always wise to reveal them, certainly not at as early a stage as this. It feeds the perception that the judge’s mind has remained closed to the emerging facts and arguments, a concern heightened in the mind of the losing party when, as here, the Recorder responds to the closing submissions in this way (at p. 843):

“Mr Leighton-Williams: … May I say straight away that I would not anticipate a finding of 75% liability here. I am not arguing that at all. But, it is indicative of the fact that the courts are very protective – Mr Recorder Herbert: What are you suggesting? Mr Leighton-Williams: Your Honour, a minimum of 60:40. Reasonable area: 70:30. Mr Recorder Herbert: Against the claimant? Mr Leighton-Williams: No. In favour of the claimant because the balance almost invariably goes in favour of the claimant. Mr Recorder Herbert: I do not think that is correct.”

Whether that is or is not correct lies at the heart of the appeal. These remarks, even when taken with the other criticisms of the judgment are not, however, enough to impugn the judgment on the ground of bias.

[35]The Recorder’s approach to contributory negligence was summarised by him at [100] where he correctly stated the law to be that:

“The court will have regard not only to the relative blameworthiness but also to causative potency so that a motorist, at the wheel of a potentially lethal weapon, will often bear a greater share of the blame than the pedestrian.”

It is well settled that there are these two aspects to apportioning responsibility between a claimant and defendant, the respective causative potency of what they have done and their respective blameworthiness: see, for example, Davies v Swan Motor Company [1949] 2 K.B. 291 per Lord Denning at p. 326 and Baker v Willoughby [1970] A.C. 467 per Lord Reid at p. 490. Moreover, as Latham L.J. observed in Lunt v Khelifa

[2002] EWCA Civ 801

at [20]:

“… 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 …”

Hale L.J., giving the judgment of the Court of which Waller and I were the other members, said in Eagle v Chambers:

“15. … A car can do so much more damage to a person than a person can usually do to a car. … The potential 'destructive disparity' between the parties can readily be taken into account as an aspect of blameworthiness. … 16. … It is rare indeed for a pedestrian to be found more responsible than a driver unless the pedestrian has suddenly moved into the path of an oncoming vehicle.”

The Recorder was wrong to seek to distinguish Eagle v Chambers by saying at [104]:

“In this case the Claimant did as I have found “suddenly move” into the path of the approaching car.”

That may be correct so far as it goes but it is inconsistent with his finding at [85] that the claimant had walked into lane 2 before moving more quickly whether by darting or by running towards the north kerb in an attempt to avoid the collision. The Recorder had rejected the police officers’ evidence that the claimant (and others) had run in front of their vehicle. All the evidence is consistent with the claimant pausing, if it is not unkind to say so, like a rabbit caught in the headlights, as she became aware of the danger and then attempting to avoid the disaster by her “dart” or run for hoped-for safety. The Recorder acquitted the police officer of blame for steering to the right which he correctly characterised at [94] as an act clearly done in the agony of the moment. The claimant’s act was no different and the Recorder was wrong not to recognise it as such. It does not justify this case being treated as totally different from Eagle v Chambers.

[36]I do not wish to be too critical about the Recorder’s belief that there is “no fetter on the trial judge” which tends to suggest that he considered he had an unfettered discretion to “apportion blame in whatever shares he [the trial judge] deems to be appropriate.” To be pedantic about it, the trial judge, having paid due regard to the authorities, must make a value judgment “as the Court thinks just and equitable having regard to the claimant’s share in the responsibility for the accident”, to quote section 1(1) of the Law Reform (Contributory Negligence) Act 1945. As for our approach, we are indeed slow to interfere with assessments of contributory negligence but we must and do interfere when some error in the judge’s approach is clearly discernable.

[37]I do not find any discernable error in the Recorder’s treatment of the evidence of Mrs Matthews. He had the advantage denied to us of seeing her give evidence and his conclusion that she was “somewhat muddled” is unassailable. Although she was confident and her descriptions graphic, he was entitled to find she did not see the claimant until she (the claimant) had reached the second lane. Some judges may have been satisfied that her view of the claimant over the next four or five metres to the point of impact in the middle of lane 3 was long enough to justify the impression she honestly held that Rebecca was sauntering across the road much more slowly than Mrs Matthews herself would do when crossing it. That others may have taken a different view is nothing to the point. The Recorder’s finding that she was walking quickly cannot be set aside even though under cross-examination Mr David Boyle did not suggest (p. 635) that what Mrs Matthews recalled was wrong. The Recorder was entitled to have regard to the other evidence, albeit not oral evidence, of the claimant walking across, or walking quickly across, or marching across the road. The truth is these were all impressionistic accounts based on fairly fleeting observation.

[38]I am less happy with the Recorder’s taking the initiative without any prompting from Mr Boyle for the defendant to admit as hearsay the statements of Rebecca’s friends. In adversarial proceedings as these were, his true task was to decide the case on the evidence the parties chose to put before him. These statements had been placed before the experts who summarised them in their reports but no hearsay notices had been served in respect of them. The mere fact that they had been disclosed as part of the police report does not make them evidence in the case. The statements contained information which may have been used in cross-examination but in my judgment Mr Leighton-Williams was right to object to the judge treating them as hearsay simply because of the reference to them in the experts’ report. In argument the Recorder expressed surprise that the defendant had not sought to adduce this evidence saying at p. 692, it was “clearly extremely material” but then, having considered the material, he said in his judgment at [22] that the evidence was not of any help in relation to the material issues he had to decide. One such material issue was the speed at which Rebecca crossed the road and in finding she crossed quickly, he found at [85] that the probability was that her three companions had already crossed Canal Street “and thus there would be no purpose in her crossing slowly”. But for their evidence there was no evidence to fix the whereabouts of Rebecca’s companions. This evidence did, therefore, affect his decision in a way it should not have done and, although there may not be a significant difference between the speed of walking and walking quickly, it seemed to be a material fact in the Recorder’s mind. In this respect he erred.

[39]Mr Leighton Williams complains that the Recorder failed to scrutinise the evidence of PC Avann and PC Byrne and wrongly accepted what they said save where they were clearly contradicted. In my judgment he could easily have found that they had colluded in preparing the statements they gave in the course of the police investigation into this accident. He could justifiably have found that their evidence was so obviously exculpatory as to render the whole of it unreliable. He did not do so. His impression that PC Avann was honest but mistaken may surprise some but it was within the ambit of what he was entitled to find.

[40]The Recorder’s finding that PC Avann activated the siren is under particular challenge based on the officer’s confusion about whether one switch operated both the lights and the siren as he originally said or whether they were separately controlled as he had to concede under cross-examination. Since there was some, but not unanimous, evidence from others at the scene that the siren was operating, that finding was open to the Recorder to make.

[41]The Recorder’s finding that they responded to the emergency call when opposite the Crown Court may be more doubtful because the CCTV photographs do show a blue tinge about the Volvo when it had not yet reached the Crown Court. This is a tiny point which makes no material difference to the outcome of the case. If they had responded earlier and so accelerated earlier they may have been going faster through the junction than if they had reacted only when closer to it. In my judgment the point does not much matter given that the experts calculated that the average speed between the points covered by the CCTV was 40 mph so it was probable that, having accelerated in response to the emergency, the Volvo had sped up to 45 mph as it passed out of view.

Was PC Avann negligent?

[42]The first matter to deal with is the question of excessive speed. As I have just stated, the Volvo was travelling at 45 mph as it approached the junction. If there was any slowing down as it did so, it was, as the Recorder found, by a few miles per hour only. Before braking to avoid the accident, the speed of the vehicle had increased to 45-50 mph.

[43]PC Avann acknowledged under cross-examination that he had read and was familiar with the Nottinghamshire Police Response and Pursuit Driving Policy and he ought, therefore, to have followed its instruction which required him, when responding to an emergency call, to address the question, “What are the prevailing traffic conditions?” He knew that a large number of pedestrians could be expected to be in the vicinity at that time of night, some of them under the influence of drink. And he knew that the car parks and bus station were on the other side of the road from the restaurants and bars. He could expect pedestrians to be crossing the road without using the pedestrian crossings. The policy also required him to consider how far he had to travel to the call to which he was responding. In this instance the emergency was 1350 metres away; so, if he had been travelling at 40 mph he would have delayed his arrival at that scene by about 30 seconds or less. If he had travelled at 40 mph the accident could have been avoided. Paragraph 1.1 of the policy is on “The Importance of Safety” and it reads:

“Safety is the key to operations of this nature. The standard of driving of police officers must therefore be beyond reproach if they are to set a proper example and gain the respect and co-operation essential to their task. It is far better to arrive late than not at all. Officers must remember that when driving standards are lowered or training disregarded resulting in safety levels being jeopardised, they may be subjected to sanctions ranging from suspension to prosecution.”

This was a salutary warning. More pertinently, officers are told at 3.1:

“It should never be assumed that the sounding of a warning instrument will be heard by other road users and pedestrians.”

Unfortunately the Recorder did not make any reference to this policy or bear its strictures in mind at all. In my judgment he was in error in failing to do so. The policy was highly relevant to the matters the Recorder had to consider. It provided more explicit guidance for the police drivers of this Force to follow than the generalised observations of Judge L.J. in Keyse.

[44]In the light of the evidence that had PC Avann reduced his speed to 40 mph then the collision would have been avoided, the Recorder’s finding was inevitable that in all the circumstances to which he properly had regard, PC Avann was negligent in travelling at a speed between 45-50 mph through the traffic light controlled junction with Carrington Street and into the section of Canal Street where the collision occurred. The cross-appeal against that finding of primary liability is hopeless and I would dismiss it.

But did PC Avann fail to keep a proper lookout?

[45]Whether or not he kept a proper lookout depends on when he ought to have observed Rebecca crossing the road. She had advanced 8 metres from the kerb to the point of impact (possibly more if, as to which there is no finding, she walked diagonally across the road as both Mrs Matthews and PC Avann had, in different ways, described her as doing). The Recorder found that she walked quickly and paused before moving more quickly in her attempt to avoid the collision. The experts agreed in paragraph 4.4 of their joint statement:

“If Rebecca Smith had initially walked into the road before running, she would certainly have been in the road for more than 2.5 seconds prior to the collision and possibly up to 4 or 5 seconds prior to the collision.”

However the Recorder seems in [86] to have relied on Mr Anderson’s report that, assuming she walked quickly to the middle of the second lane, then immediately ran to the point of impact, her time in the road to that point would amount to some 3.4 seconds. He added in the region of half a second to allow for the claimant to pause on seeing the approach of the police Volvo before moving more quickly into the collision. He therefore found that the claimant was likely to have been in the road prior to the collision for somewhere in the region of 4 seconds. He gives no reason for allowing only half a second for reaction time when, two paragraphs later in the judgment, he allowed a perception reaction time of 0.9 - 1.6 seconds for PC Avann’s response to the crisis. It may be, therefore, that his 4 seconds is a conservative estimate. To make the obvious point, all of these timings are bound to be imprecise because we do not know how quickly or how far she walked nor how quickly nor how far she ran nor even how long it took her to react.

[46]Let me look at it another way. If she had walked to the middle of the second lane before stopping, she would have covered about 4.5 metres and at a fast pace of 1.92 metres per second she would have taken 2.34 seconds to cover that distance (4.5 divided by 1.92). She then moved 3.5 metres at a quicker pace or at a run, so taking that speed from Mr Anderson’s table 4, she was covering the ground at 3.75 metres per second and thus would have taken 0.93 seconds before she was struck by the oncoming police car. If one allows only 0.75 seconds for reaction time, the time taken from stepping off the kerb to the point of impact would be just over the 4 seconds, which is the time the Recorder allowed for this manoeuvre. So let me work on her being on the road for 4 seconds.

[47]Looking at the matter from PC Avann’s perspective, his response time was, as I have set out, accepted by the Recorder to be somewhere between 0.9 and 1.6 seconds, somewhat longer than the Highway Code’s allowing 0.6 seconds to react. The experts agreed that the time taken for braking and swerving would be between 1.3 and 1.6 seconds. Thus, as the Recorder accepted, the time taken from the moment of seeing the claimant to the point of impact is somewhere between 2.2 and 3.2 seconds (0.9 + 1.3 or 1.6 + 1.6).

[48]If one accepts the Recorder’s estimate of Rebecca being in the road for 4 seconds and one deducts PC Avann’s reaction time and braking time, then it means that Rebecca was in the road for between 1.8 and 0.8 seconds before she was seen (4.0 – 2.2 or 4.0 - 3.2). In the view of the joint experts, as recorded in the judgment at [88], it was slightly longer. They said at 7.4:

“… The hazard to which PC Avann responded by swerving must have been evident to him for more than 2 seconds and more likely around 2.5 seconds, before the collision.”

On that basis, Rebecca was in the road for between 2 and 1.5 seconds before she was observed. On this arithmetic she was in the road for at least 0.8 seconds and at most for 2. 0 seconds.

[49]Let me assume that she was in the road for between 1 and 2 seconds, and the question is whether she should have been seen or not, it is also pertinent to see how far she had walked in that time. According to Mr Anderson’s table, at a normal pace, the pedestrian covers 1.62 metres per second and at a faster pace 1.92 metres per second. Taking the higher figure because she was walking quickly, she would have advanced 1.92 metres from the kerb in 1 second and 3.84 metres in 2 seconds. At the outer extremity of this bracket, she would have been 0.84 metres into the second lane when she was seen by PC Avann. The impression I have from reading the whole of the evidence is that each became aware of the other at about the same time so placing her in the second lane when she was seen by PC Avann accords, more or less, with the Recorder’s finding that she was in the middle of the second lane, i.e. 4.5 metres from the kerb, when she froze before making her ill-fated leap for safety. Whether she was 3.84 or 4.5 metres into the road, she must have taken a good number of steps to get there.

[50]Next I wish to examine the Recorder’s conclusions in [90]:

“ 90. On the basis of my finding that the Volvo’s speed at impact was in the bracket of 35-40 mph and that it was braking for some distance prior to the collision P.C. Avann must have responded to the presence of the Claimant in the road when the police Volvo was approximately 45 metres or perhaps more from the point of impact. That calculation was made on the basis that travelling at 40 mph a vehicle travels 17.88 miles per second and so in 2.5 seconds will travel 44.7 metres. As it happens 45 metres from the point of impact positions the police Volvo in approximately the centre of the first pedestrian crossing and approximately where the experts agree that the pedestrian entering the road or near the road near the accident location would have become visible to the attentive motorist.”

On my calculations these figures emerge. The experts agreed that the swerve with simultaneous braking would have taken at least 1.3 to 1.6 seconds, the mean being 1.45 seconds. She had been in the road for 2.55 seconds before actual braking and swerving (4 seconds total time in the road less 1.45 for the braking and swerve). The speed at which the Volvo was travelling at the point of impact was 35 to 40 mph (call it 37.5 mph) and its speed in Canal Street was 45-50 mph (call it 47.5 mph). At 1 mile per hour the vehicle would cover 0.447 metres per second, so in 1.45 seconds at 37.5 mph the Volvo travelled 24.3 metres (1.45 x 37.5 x 0.447) and in the previous 2.55 seconds at 47.5 mph it covered 54.14 metres (2.15 x 47.5 x 0.447), a total distance of 78.44 metres in 4 seconds. Using Mr Anderson’s graphs, this means that the claimant stepped off the kerb when the Volvo was about 13 - 14 metres short of the stop line in Canal Street and PC Avann began to brake and swerve about 10 metres after the second pedestrian crossing. Although, to repeat myself, all calculations are rough and ready and give no more than a very broad picture, I prefer my calculation to that of the Recorder.

[51]The experts are not of great help and leave vague the point at which the claimant ought to have been seen. Their view, dealing with visibility was:

“5.1 We agree that pedestrians entering the road or in the road near the accident location would have been visible to the attentive motorist approaching through the junction with Carrington Street.”

This may have been no more than a statement of the obvious because, as the Recorder found at [14], “For a driving travelling west along Canal Street and towards Castle Boulevard the visibility towards the accident scene extends for not less than about 150 metres.” When coming to his conclusions about when a pedestrian would have become visible to an attentive motorist, the Recorder seems to forgotten this finding made in the early part of his judgment. For my part, I assume that what the experts meant in their vague and unspecific paragraph 5.1 was no more than that a pedestrian would have been visible to the attentive motorist “approaching” (i.e. not there yet) to go “through” the junction. For another example of their use of language they speak in paragraph 1.3 of the Volvo “passing through a light controlled junction”. My understanding is, therefore, that they treated the stop line where the traffic would be stopped by red lights as the beginning of the junction. This was where the buses peeled off Carrington Street to cross Canal Street. So if, as I would find, the Volvo was indeed 13 – 14 metres away from the stop line, it was nonetheless approaching the junction and about to go through it within the broad meaning of the experts’ report. It is of significance that the experts were not saying that Rebecca would not have been visible before the Volvo was approximately in the centre of the first crossing which is the essence of the Recorder’s conclusion in paragraph [90] of his judgment. The important point is that in my judgment the Recorder’s error was to rely on the moment when and the position in the roadway when P.C. Avann actually saw Rebecca rather than rely on the relevant moment and position when he ought to have seen her had he been keeping a proper look-out.

[52]In my judgment one must not get too influenced or led astray by mathematical calculations in reconstructing this accident. Just examine the evidence. PC Avann said he had slowed down to 10 mph going through the junction. He did not do so. He approached it at about 45 mph and if he slowed down it was hardly at all. On his own admission he was already making his way along Canal Street to the west of the junction when he saw the lone female only a matter of feet in front of him. He did not see her step off the pavement. He did not see her walk to the point where her presence did alert him. That was when she had already reached the middle of the second lane. We know that at that moment he was doing between 45 and 50 mph in an area where he could expect pedestrians to be crossing the road. It was too fast. The pedestrian was in the road for an appreciable time. On this well illuminated carriageway, her wearing dark clothing cannot explain his not seeing her. She was seen by those outside the cash machine and that was about 70 metres away from the impact site. Visibility travelling west down Canal Street extended for not less than about 150 metres. She had stepped off the kerb before he reached the stop line at the junction. In my judgment PC Avann failed to keep a proper lookout for the speed he was doing.

[53]It follows that the Recorder erred in finding PC Avann to have been attentive and clearly keeping a proper lookout for any pedestrian that might be crossing the path of his approaching car. My conclusion on the totality of the evidence is that he plainly should have seen her. I would therefore allow the appellant’s appeal.

What is the proper apportionment of contributory negligence?

[54]I have now to ask what is the just and equitable reduction to make having regard to the claimant’s share in the responsibility for the damage she suffered. Her damage was caused partly by her crossing the road when it was unsafe to do so. She put herself in danger. There was no justification for the Recorder finding she showed a “reckless disregard”, his emphasis, for her own safety. The major cause of the injury she suffered was her being struck by the Volvo travelling at an excessive speed in circumstances where it could not be brought to a halt in time to avoid the accident. At 40 mph PC Avann could have stopped and the claimant would not have been injured. He did not see her but then she did not see him. She was more to blame for her misfortune than a pedestrian crossing the road in front of an ordinary car because she failed to heed the flashing lights and the siren but the major responsibility for the damage and therefore the more causatively potent factor was the negligent driving of what was and what unfortunately became a dangerous weapon.

[55]I would therefore hold the defendant responsible for two thirds of the claimant’s damage and would allow the appeal accordingly.

Lord Justice Lloyd:

[56]I agree that the defendant’s appeal should be dismissed, and that the claimant’s appeal should be allowed to the extent stated by Ward LJ, for the reasons that he gives.

[57]It seems to me that one of the most telling criticisms of the recorder’s judgment advanced on behalf of the claimant is his treatment of paragraph 5.1 of the expert’s agreed statement, quoted by Ward LJ at paragraph [24] above, as if, instead of saying “would have been visible to the attentive motorist approaching through the junction”, it had said “would not have been visible to the attentive motorist until he approached through the junction”: see how the recorder put it in his paragraph 90 quoted by Ward LJ at paragraph [29] above. Given the recorder’s own statement at paragraph 14 of that which was not in dispute, namely that visibility to the accident scene for a drive travelling west extended for not less than 150 metres, his conclusion that the claimant would not have been visible until PC Avann was no more than 45 metres away from her is untenable.

[58]I agree, in particular, with what Ward LJ says at paragraph [52] above, taken with the recorder’s pertinent point at his paragraph 97, quoted by Ward LJ at paragraph [29], that the driver’s unacceptable evidence that he slowed down to about 10 mph on approaching the junction shows that, with hindsight, he knew that it would have been right to have slowed down substantially at that point. It seems to me clear that the driver could and should have seen the claimant sooner than he did and that, taking that together with his excessive speed as found by the recorder, his responsibility for the accident was significantly greater than that of the claimant. On that basis a finding of one third by way of contributory negligence on the part of the claimant is appropriate.

Lord Justice Kitchin:

[59]I agree with both judgments.