Ahanonu v South East London & Kent Bus Company Ltd

This is an application for permission to appeal, in the first instance, a judgment of HHJ Latham on liability, the judgment being delivered on 24 May 20007, and in the second instance, in respect of an order for costs, which he made following the judgment on liability.

In the judgment on liability, the judge found that the defendants were negligent and that the claimant was guilty of contributory negligence in respect of a road traffic accident which had caused injuries to the claimant. The trial was solely on liability. He apportioned liability between the claimant and the defendant at 50 percent for each. He ordered the defendant to pay 50 percent of the claimant’s costs. The defendant seeks permission to appeal the finding of negligence and the order for costs.

The claim arises out of a collision between the claimant and a bus owned by the defendant and driven by Mr Voltier. How the accident happened was the subject of a dispute involving the claimant Mr Voltier and a Mr Page. Mr Page was the driver of a bus belonging to another bus company which was travelling behind Mr Voltier’s bus before the accident. There is no dispute that the accident happened on an exit road from Peckham bus garage. The judge found, accepting Mr Page’s evidence and rejecting the claimant’s evidence, that the claimant had crossed a pedestrian-crossing behind Mr Voltier’s bus and walked diagonally across the road, behind the bus to a position by a bollard in the road, close to the kerb and almost on the apex of the corner. There, as the bus executed a sharp left turn round the corner, it squashed the claimant between a bollard and the side of the road. The judge found Mr Voltier negligent because he failed to keep a proper look out for pedestrians who might be jay-walking as he made his left turn. He found the claimant negligent for jay-walking and ignoring warning signs clearly placed on railings, which guard pedestrians from walking onto the carriageway, preventing them from walking on the road. The grounds of appeal, shortly put, are that the judge was wrong to find Mr Voltier negligent in the circumstances of the accident; alternatively, if he was negligent, wrong to apportion liability 50 percent to him, 50 percent to the claimant.

In my judgment, permission should be granted. Allowing for the fact that this court seldom interferes with the decision of a judge at first instance on apportionment, and further allowing for the causative potency of a large bus by comparison with the negligence of a pedestrian, my view is that the grounds of appeal are arguable and that there is a real prospect of success. On the judge’s finding, the claimant came from behind the bus and proceeded up the nearside of the bus to the point on the apex of the corner, where the railings ought to have prevented a pedestrian from stepping out into the path of the bus. It was not a case of the bus passing the claimant as she was on the carriageway or at the kerbside. At that point, the driver Mr Voltier’s attention would be bound to be concentrated on the traffic in front of him. The judge stated that it is well-known to bus drivers that pedestrians walk on carriageways outside railings, despite warning signs; but in my judgment it is arguable that it is one thing to be aware of this hazard in general terms, but another to have to anticipate that a pedestrian would walk from behind a bus into a position of obvious danger. It seems to me at least arguable that the claimant was the author of her own misfortune; alternatively, her negligence, whilst far less significant than that of Mr Voltier. Accordingly, for my part, I would give permission in respect of the finding of liability.

As far as the costs are concerned, initially the defendant made a part 36 offer of 70 percent to 30 percent liability in favour of the claimant. This was not accepted. The claimant made a counter-offer which was also not accepted by the defendants. The defendant then traced the witness Mr Page; as a result, it amended its defence to put Mr Page’s version of events. At the hearing of the application to amend the defence, the claimant sought permission to accept the part 36 offer. The judge refused that application.

The judge, when dealing with costs, made an order that the defendant pay 50 percent of the costs. He set out in his judgment five factors which he took into account in making his order. It is unnecessary for me to recite those five factors. It seems to me that, although this was a decision made in the exercise of his discretion, it is, to say the least, arguable that the part 36 offer, which was not beaten by the claimant, arguably ought to have been much greater factor, if not a determinative factor, in the order for costs. In the circumstances, for my part I would grant permission in respect of the appeal in respect of the order for costs.

I agree