Breakspeare v Pawlowski

LORD JUSTICE SEDLEY: This is a renewal of a previously unsuccessful application for permission to appeal against a judgment given by Judge Bursell QC on 9 November 2005 in Bristol, sitting as a judge of the High Court, in favour of the defendant in a running down action. The accident occurred on a summer evening in May 2001 but in full daylight. It occurred in Tetbury where, as is readily seen from the good scale plan, Long Street, the main road, bends and on the outside of the bend receives, first of all, traffic entering at a shallow angle from Church Street and then immediately afterwards traffic entering at a sharp angle from Hampton Street. The traffic entering from Church Street and turning left secures right of way because it is on Long Street before it reaches Hampton Street.

The claimant was a cyclist, riding unfortunately without a crash helmet, who entered Long Street from Church Street at what the judge found to have been a good pace. He was describing an arc and proceeding to his left down Long Street when out of Hampton Street, across the give-way lines, came the defendant in his car, turning right. He hit the claimant full on, throwing him first into his windscreen, then into the road. The judge found, in brief, that the claimant had gone at a fair speed into Long Street and had been hit near the centre of the road by the defendant who, the judge found, had emerged from Hampton Street without seeing the claimant, albeit the claimant had been visible to him some way back from the mouth of Church Street. The defendant, the judge found, had been some two metres back from the mouth of Hampton Street when he set off on an uninterrupted course, and it was at that initial point that he would have been able to see the claimant had he looked.

This in itself might well have been thought to call for a convincing non-negligent explanation from the defendant of how he came to run the claimant down in Long Street. The defendant’s own evidence was, moreover, found unreliable by the judge. Nevertheless, on the picture that the judge pieced together from other evidence, he reached the conclusions which are set out at page 27(C) to page 28(C) in the transcript of his judgment. I will not read them out.

Essentially the judge found that the defendant had not looked with sufficient care to his right and that, had he done so, he would have seen the claimant approaching. But, to my mind surprisingly, he held that had the defendant looked as he should have done and seen the claimant as he could and should have done, he would not have been required to give way to him.

If the implication of this finding is that the claimant was at that point too far back in Church Street to be in danger from the defendant’s emergence, then it is manifestly wrong because the danger materialised and the defendant hit him. If the implication is that the defendant, had he looked, would have been entitled to make a judgment that it was safe to emerge, it is in my respectful view also debatable, both on the same ground, namely that there manifestly was a danger, and because I am not at all sure that this form of contingent logic is admissible in a road accident case of this kind.

While, therefore, the full court may ultimately share Sir Paul Kennedy’s view, which he spelt out in refusing permission on the papers, that all of this lay within the judge’s fact-finding province, I do not for my part think that it is a foregone conclusion.

Having said all this by way of explanation of why I propose to give permission to appeal, it is appropriate to say that on the judge’s findings there is likely to be a measure of contributory negligence on the claimant’s part, because of the way in which he entered Long Street and possibly also because of his failure to wear a helmet. But there is a cogent case on the judge’s primary findings for holding the defendant at least partly to blame for the claimant’s injuries.

In this situation, I consider the case now ripe for mediation, and the usual direction to that effect will accompany my grant of permission.