J U D G M E N T

1. LORD JUSTICE KENNEDY: This is a claimant's appeal from a decision of HHJ Altman (sitting as a judge of the High Court), who on 18 June 2004 ordered that the claim for damages for personal injuries be dismissed.

2. The claimant was born on 26 August 1987, so he is now 17 years of age. On Saturday 20 March 1999, when he was 11 and a half years of age, just before 6pm he was standing with his father, his two year-old sister and others at a bus stop in Walworth Road, London, SE17. They were waiting for a No.68 bus to travel south. After a couple of minutes they saw a No.12 bus approaching and decided to catch that bus instead. However, it was due to stop at a different bus stop a little further north. So Mr Chadli gathered up the baby and they all began to run along the pavement towards the bus stop for the No.12 bus. The claimant, Gavin, was leading and he was running towards the camera on the kerb side of the bollards, which can be seen on the pavement in photograph 1 -- the bus stop in that photograph being the stop for the No.12 bus.

3. The approaching No.12 bus was a Routemaster, that is to say, a double-decked bus with an open rear platform, and it was being driven by the first respondent, Mr Brooks. He was then 55 years of age and was a very experienced bus driver, familiar with that particular route. He was bringing the bus slowly into the bus stop, aiming to stop with the platform some 6 to 12 inches away from the kerb. As usual at that time on a Saturday evening the road was busy with vehicular and pedestrian traffic. But it was daylight, it was fine and dry and he did notice the boy running towards his bus. It is, as it seems to me, quite clear that he was not in any way alarmed. It seems that he had almost stopped and was travelling at between 2 and 5 miles an hour when the claimant tripped or slipped and fell awkwardly so that his left leg and left arm went over the kerb edge and were caught by the slowly rotating front nearside wheel of the bus, with the result that the claimant sustained grave injuries to both limbs. No one who has read the papers in this case can have anything but the deepest sympathy for that young boy.

4. The action with which we are concerned was not commenced until 7 May 2003, and it was subsequently ordered that the issue of liability be tried first. That was the issue which Judge Altman had to determine in June 2004. The hearing was unusual in that no oral evidence was called. The judge was not entirely happy with that course, as he indicated during the hearing and in his judgment, but that was the way in which counsel on both sides chose to present the case to him and, as the judge recognised, most of the relevant facts were not in dispute. So he had to do the best he could with the material which was available to him. It consisted of a number of photographs of the scene, to one of which I have already referred; the police reports of two police officers; a statement of agreed facts, which I have in fact encapsulated in the earlier part of this judgment; and three witness statements, two from the bus driver, Mr Brooks, which were put in evidence by counsel for the claimant, and a statement by the claimant's father, which was put in evidence by counsel for the respondents. There was no plan, nor were there any agreed measurements.

5. Although it was originally alleged that Mr Brooks failed to keep a proper lookout and failed to see the claimant earlier than he did, the evidence was to the opposite effect. It has never been alleged, nor could it have been, that Mr Brooks was driving too fast. Furthermore, the judge found that, once the claimant began to fall, there was nothing that Mr Brooks could do to avoid the accident, and in this appeal there is no attempt to interfere with that finding.

6. Essentially, the claimant's case was and is simple. It relates to the time when Mr Brooks saw the claimant running along, as he put it 'the kerb', towards him. It is contended that, at that time, the bus driver should have recognised the risk of an accident of the type that in fact occurred and should have taken steps to avert that risk. It is contended that he could have done so in two ways. First, he could have sounded the horn of his vehicle or flashed its headlights so as to warn the boy that, in his opinion, what the boy was doing was potentially dangerous. Secondly, he could have stopped the bus short of the bus stop or further out from the kerb.

7. In my judgment, it is clear that Mr Brooks could have taken the sort of steps advocated on behalf of the claimant if he knew, or ought to have known, that the situation was one which called for some reaction on his part: for example, as I put to counsel during the course of his submissions this morning, if he had seen an unaccompanied toddler balanced on the edge of the kerb a very short distance ahead. So the real issue which the judge had to decide was whether, as the boy ran towards him, the bus driver ought to have recognised that the situation was one which did call for some reaction on his part. That was fully appreciated by the judge, as one can see from paragraphs 46 and 56 of his judgment. He was referred to two authorities: Foskett v Mistry [1984] RTR 1 and Armstrong v Cottrell [1992] PILR 109. It was said by May LJ in Foskett that reference to authority in this type of case is unnecessary and does not assist. I for my part would endorse that, and we this morning, rightly, have not been referred to any authorities at all.

8. As the judge pointed out, the bus driver could reasonably conclude, as was in fact the case, that the boy was running for the bus. So he could reasonably conclude that the boy was fully aware of the presence of the bus on the road. He was also not a very young child. The bus driver thought he was about 10, but, as I have already indicated, he was in fact 11 and a half. The judge concluded that, although, as he recognised, the boy was running on the carriageway side of the bollards, the circumstances were not such as to give rise to a foreseeable risk of his falling or sustaining injury such as occurred in this case.

9. In measuring whether there is a foreseeable risk and whether anything ought to be done to avert any risk that there may be, Mr Evans-Tovey urged upon us, and I would accept, that one has to have regard to what is likely to happen if the risk materialises, and to the measures necessary to guard against it. In this case the judge found that, bearing all matters in mind, there was simply no foreseeable risk against which the driver should have taken precautions. That made it unnecessary for the judge to consider the defence arguments in relation to causation (which are not, in any event, sought to be pursued in this appeal) and the issue of contributory negligence, in relation to which we have not invited submissions.

10. Mr Evans-Tovey submits that the judge was wrong to say, as he did in paragraph 5 of his judgment, that the kerb stones appear from the photographs to be 10 inches to one foot wide and that the bollards appear to be some 2 and a half to 3 kerb stones' width back from the road, including the kerb stones themselves. He submits, and has submitted to us, that the kerb stones were only 6 inches wide, that the boy was in fact running on the kerb stones and that the bollards were about 18 inches from the kerb so that the space in which the boy was running was narrower than the space envisaged by the judge.

11. In my judgment, the conclusion reached by the judge was open to him on the only evidence which was available to him, namely the photographs. But, in any event, the decision as to the probable width of the space between the bollards and the carriageway was not determinative. Whether the space between the bollards and the kerb edge was 18 inches or, for example, 25 inches (the minimum gap envisaged by the judge), it was plainly wide enough to enable the boy to run in that space, and what then mattered was whether his doing so gave rise to a risk which the bus driver should have foreseen and taken steps to guard against.

12. Of course, any reasonably competent and careful bus driver in the position of Mr Brooks would be bound to accept that, in the circumstances of this case, there was a remote risk of some mishap occurring which would result in the boy falling, and that if he fell in such a way that part of his body was in the carriageway at precisely the moment when the front wheel of the bus was approaching the spot where he fell, then dreadful injuries would be likely to ensue. But, as it seems to me, the judge was fully entitled to conclude that that remote risk was not a risk which he was required to recognise and react to in the circumstances of this case. The situation was, as has been said during the course of submissions this morning, in many ways a familiar one. Commonly bus drivers see people of all ages running to catch a bus, running perhaps close to the kerb edge, but only relatively rarely does what they are doing give rise to a foreseeable risk of injury against which precautions should be taken. The judge found that this was simply not such a case and I for my part can see no reason why we should interfere with that finding. I would therefore dismiss this appeal.

13. LORD JUSTICE LAWS: I agree that this appeal should be dismissed for the reasons given by my Lord. In my view, the judge was wholly entitled to conclude that there was nothing untoward on the facts here which should have put the driver on warning of the risk of danger to the claimant.

14. LORD JUSTICE MAURICE KAY: I agree.

Order: appeal dismissed. No order as to costs.