Sam v Atkins

J U D G M E N T

Wednesday, 9th November 2005

1. LORD JUSTICE MAY: This is an appeal in a case arising out of a road traffic accident from the decision and order of HHJ Hamilton in Luton County Court on 18th February 2005. The judge dismissed the claimant's claim for damages for negligence. He held that although the defendant had driven negligently her negligence had not caused the claimant's injuries. He held contingently that if he had been satisfied on the issue of causation he would have held the claimant 75 per cent responsible by her contributory negligence for the accident in which she was injured.

2. The claimant appeals by permission of Clarke LJ. He wrote that the appellant's case on causation was sufficiently arguable, but he would not have given permission to appeal on apportionment; any renewed application for permission to appeal on apportionment should be made to the court on hearing the causation.

3. The accident was on 12th February 2001 at half past six in the evening in Church Street, Dunstable, a busy four-lane shopping street. It was dark, but there were street lights. The surface of the road was wet or damp. The claimant, then aged about 37, was on foot. She had travelled by bus to a bus stop quite close to the place of the accident. She walked towards, but not as far as, a pedestrian crossing. She went to cross the road from south to north not at the pedestrian crossing.

4. The defendant was driving her Landrover along Church Street in a westerly direction. When the accident happened she was in the offside of the two lanes going in her direction, having apparently recently pulled into that lane from the nearside lane. Just short of the accident there are road markings reducing the lanes travelling west to a single lane to enable traffic travelling in the opposite direction to turn right. In the nearside lane was a row of more or less stationary vehicles. The defendant was overtaking at up to 20 miles per hour. At the front of the row of stationary vehicles, in the nearside lane, was a large box transit van. It had stopped, perhaps to allow the appellant and perhaps one or two other pedestrians, to cross the road in front of it. The defendant could not see through the transit van as she was overtaking it. She had changed lanes from the nearside to the offside in order to overtake the van and other stationary traffic.

5. Just as the defendant's Landrover came approximately level with the front of the transit van, the appellant stepped out from the front of the van into the path of the defendant's Landrover. She collided, probably with its protruding left-side wing mirror. She was knocked to the ground and suffered severe head and other injuries.

6. The appellant could remember nothing of the accident itself. Material evidence was given by the defendant and by Mr Trevor Coleman, a postman who saw what happened from a position immediately on the other side of the road.

7. The defendant had made three statements which the judge considered. Statements to the police and to her insurers were to the effect that it was only when her Landrover was virtually next door to the transit van that she was aware of the presence of the appellant. But the judge read her statement for the purposes of the proceedings as saying something slightly different. She there explained that the majority of her vehicle was level with the blue van. She estimated that her front wheels and the middle of her bonnet were level with the front of the van when she saw a figure which must have been the appellant. She was in effect saying that the appellant walked into the side of her Landrover when it was partially past the van.

8. Mr Coleman said that the stationary van had stopped to let the appellant cross. The judge then recorded him as saying:

"I saw a woman suddenly step out from in front of this van without looking. At the time the van was stationary. As the woman stepped out a Landrover was almost level with the van, and the woman literally walked into the Landrover. It was a glancing blow as the Landrover hit the woman and I would say that she walked into the side of the vehicle. The driver of the Landrover had absolutely no chance of either braking or taking avoiding action. As the Landrover had been approaching from behind the van, the van because of its size would have hidden the lady, who stepped out into the offside lane."

9. In another statement made to the appellant's solicitors Mr Coleman had said that the lady walked out in front of the transit van without stopping to check the other lane. A silver Landrover then drove along the outside, past the transit van, and knocked the lady down. He thought it was a glancing blow.

10. There was thus some possible differences in the evidence of both the defendant and Mr Coleman as to precisely where the Landrover was in relation to the van when the appellant stepped out.

11. The judge concluded without hesitation that the defendant's first statement, which accorded with Mr Coleman's statement, was more likely to be correct. The judge, who knew the location, held that a reasonably prudent driver should have anticipated the presence of pedestrians. He referred to passages in the highway code and to stopping distances for a vehicle travelling at 20 miles per hour. He thus held that the Landrover was almost level with the van when the appellant stepped out. It was highly unlikely that the appellant would have stepped into a vehicle which was already in front of her. Mr Coleman's other statement completely contradicted that view of the facts.

12. The judge held that the defendant was negligent. 20 miles per hour was too fast to guard against the foreseeable possibility that someone, perhaps a child, might emerge into the offside lane when the defendant was say 5 metres back from the transit van. The defendant was not guarding adequately or reasonably against the possibility that this might happen.

13. But the judge went on to hold that this negligence was not causative of the accident. On his factual findings the appellant stepped out at the very last moment. The defendant could not have stopped to avoid her coming into contact with the wing mirror unless the defendant had been going as slow as 1 or 2 miles per hour or such a speed as would enable the defendant to stop within the few feet between the appellant and the wing mirror. To demand that a driver should go as slowly as that would put far too high a burden on him or her.

14. In my judgment, the judge was technically wrong to express the obvious findings that he made in the way in which he did. It is commonplace to analyse a cause of action in negligence compartmentally, examining a duty of care, breach of the duty, causation and damage. That is convenient, but technically wrong. Negligence is a composite concept necessarily combining all the elements I have mentioned.

15. I refer, for convenience, to my judgment in a case called S v Gloucestershire County Council [2001] Fam 3013, 337 F. It is convenient because it refers to leading authorities on the subject:

"A negligence claim is habitually analysed compartmentally by asking whether there was (a) a duty of care; (b) breach of that duty and (c) damage caused by the breach of duty. But damage is the essence of a cause of action in negligence and the critical question in a particular case is the composite one, that is whether the scope of the duty of care in the circumstances of the case is such as to embrace damage of the kind which the plaintiff claims to have suffered. As Lord Bridge of Harwich said in the Caparo case [1990] AC 605, 627: 'It is never sufficient to ask simply whether A owes B a duty of care. It is always necessary to determine the scope of the duty by reference to the kind of damage from which A must take care to save B harmless.' Lord Oliver of Aylmerton emphasised the same point in Murphy v Brentwood District Council [1991] 1 AC 398, 486 when he said:

'The essential question which has to be asked in every case, given that that damage which is the essential ingredient of the action has occurred, is whether the relationship between the plaintiff and the defendant is such... that it imposes upon the latter a duty to take care to avoid or to prevent that loss which has in fact been sustained.'

"This question necessarily subsumes the question whether the acts or omissions of the defendant caused the damage relied on."

16. Caparo and Murphy v Brentwood were both cases concerning economic loss, not physical damage, but the principle is the same for each. The question is whether the relationship between the claimant and the defendant is such that it imposes on the latter a duty to take care to avoid or prevent the loss which has in fact been sustained. That question subsumes the question whether the acts or omissions of the defendant caused the damage relied on. If they do not there is no negligence.

17. So, here, on the factual findings which the judge obviously made, he should not technically have held the defendant to be negligent. On his findings the defendant owed no duty to the appellant to take care to avoid the injury which in fact occurred when the appellant walked into the path of the defendant's vehicle. Putative negligence in other circumstances which might have caused injury to another claimant did not justify a finding of negligence in breach of duty to the appellant on the facts as found by the judge in this case. That is a technical matter and identifying this error does not, itself, determine this appeal, but it does remove an uncomfortable half contraction in the judge's findings.

18. The written grounds of appeal in the present appeal state that it is a golden rule of driving that a driver should never drive where he or she cannot see at a speed at which he cannot stop in time. It is common sense that a driver should not overtake a stationary vehicle in a line of busy town traffic at such a speed that it is impossible to pull up should a pedestrian emerge unexpectedly from in front of the stationary vehicle. It is said that it was not open to the judge to conclude on his own findings that the defendant was under no liability at all for the claimant's injuries: she failed to appreciate that a pedestrian might emerge from in front of the van; she drove too fast for the traffic conditions so that she was unable to avoid the accident; she ought not to be excused from all negligence simply because her vehicle was almost level with the van at the moment of impact; the judge should have held that her negligence was at least a material cause; the appellant's contributory negligence should, it is said, have been put at less than 75 per cent.

19. Mr Hamer, in support of the appeal, says that the judge omitted to deal with evidence of the defendant, that she had not anticipated that a pedestrian might emerge from in front of the van and that she was accelerating at the point of impact. She had travelled 20 to 25 yards from where she had moved to the outer lane. She had not seen pedestrians get off the bus. She should have proceeded with extra care. She should have anticipated that pedestrians might emerge. She should either not have come out of the inner lane or should have driven at a speed which would have enabled her to stop if a pedestrian should emerge into her path. She should not have accelerated.

20. Mr Hamer suggests that the judge did not deal with the case that the appellant only had to show that the defendant's negligence was a material cause. I do not find this last submission persuasive. The judge decided that the defendant's actions did not cause the accident at all.

21. The judge's findings of causation, it is said, were inconsistent with his findings in relation to negligence.

22. Mr Hamer referred, in his written skeleton, to a case Goddard & Anr v Greenwood [2003] RTR 159, but no relevant point of principle emerges from that case. The driver there proceeded to cross a pedestrian crossing when the lights had only just turned green in his favour and his view of possible pedestrians was obscured by a stationary lorry. Mr Hamer has also, this morning, drawn our attention to Barlow v Entwistle , a decision of this court of 15th May 2000, in which this court made a finding on rather different facts which is nevertheless, in general terms, consistent with the finding of the judge in the present case.

23. In my judgment, once the judge's obvious findings are amended to eliminate his finding of negligence for the technical reasons which I have explained, there is no persuasive case that his conclusion was wrong. Mr Hamer does not seek to shift the judge's material primary findings of fact. The simple, though regrettable, fact is that the appellant walked into the path of the defendant's vehicle when it was level, or almost level, with the van and at a time when the defendant had no chance of avoiding colliding with the appellant whatever speed she was travelling at. It would be an unattainable counsel of perfection to hold that the defendant should have driven at such a speed and in such a way that she would have avoided this accident. The judge was entitled to hold that the entire cause of the appellant's injuries was her own negligence.

24. If, for other hypothetical circumstances, the defendant might have been held in negligent breach of duty, and thus liable for someone else's injuries, she was under no duty to guard against the accident and injuries which in fact happened. That can be expressed explanatorily by saying that the defendant's negligence did not cause the accident. It is technically more accurate to say that she was not in breach of duty to this claimant in the circumstances of this case. The judge was entitled so to hold and in substance did so.

25. I would dismiss this appeal. It is not necessary, in my view, to address the point in the respondent's notice.

26. SIR PETER GIBSON: I agree.

ORDER : appeal dismissed; costs of appeal assessed in the sum of £7,000 to respondents; leave to appeal refused.