Bollito v Arriva London

Nelson J’s finding that the defendant bus driver, Mr Montero, was 100 percent to blame for Mr Bolito’s very serious head injury when he fell from the defendant’s moving bus in the Haymarket at 11.30 pm on 15 June 2005 depended entirely on his credibility resolution of conflicting oral evidence of witnesses whom he heard. It is very rare for this court to entertain appeals from such findings of fact and it was on this basis that the judge himself, and subsequently Tuckey LJ on the papers, each refused permission to appeal. They were in my judgment entirely correct to do so and I shall dismiss this renewed application.

Mr Bolito was with three other people, including his sister and Mr Damiano, her boyfriend. Mr Bolito and Mr Damiano entered the bus, which was stationery or at least travelling less than three miles an hour, when the driver responded to their knocking on the doors by opening them. That he opened them was one of the judge’s findings which rejected some of the driver’s evidence. Mr Damiano got onto the bus and showed his pass. Mr Bolito followed with his sister and the other person somewhat behind and yet to reach the door. The driver closed the doors trapping Mr Bolito in them as they closed. Mr Bolito struggled, anxious no doubt that the other two should be able to get onto the bus, and very soon anxious for himself. The driver, however, moved off, accelerating to between 10 to 15 miles an hour, Mr Bolito stuck between the doors, facing backwards in the line of the bus’s travel, and he fell into the road hitting his head and sustaining very severe injury.

The factual conflict of evidence was between the driver, Mr Montero, and Mr Boyd, a passenger at the front of the bus near the door on the one hand, and Mr Damiano and Mr Bolito’s sister on the other. Mr Boyd was an independent witness who had a good view of what was happening except that a luggage rack somewhat obscured his view of Mr Bolito’s legs. Mr Damiano was not independent, and the defence case at trial was that he was a dishonest witness. The judge, however, having heard the witnesses give their oral evidence, accepted that he among others was seeking to tell the truth and accepted the main lines of his evidence in favour of that of the independent Mr Boyd. There was much detail but Mr Matthews, responding to what Tuckey LJ wrote, has helpfully boiled it down to two points in his subsequent written submission supplemented this morning by careful oral submissions.

First there were crucial findings about a) whether Mr Bolito was standing in the door’s way when the driver closed the door or whether he moved between doors which were already closing in an attempt to allow the other two to enter the bus, and b) whether Mr Bolito fell from the bus or deliberately tried to jump. The driver accepted that he was technically in breach of the defendant’s rule that a bus should not start to move before the doors have closed. The first of the crucial findings depended mainly on Mr Damiano’s evidence, and in part on how far he himself had moved into the bus, giving room for Mr Bolito to do likewise. The written grounds of appeal are understandably a detailed rerun of the factual case which failed before the judge, with emphatic reliance on the evidence of Mr Boyd. The more recent statement suggests that the judge gave insufficient reason for rejecting Mr Boyd’s evidence when the rest of the evidence was insufficient to enable him to do so.

This submission in my view does not do justice to the judge’s extended and careful analysis of the evidence as a whole. The points I have mentioned were not the only ones where there were conflicting accounts for the judge to resolve: for example, he accepted that it was the driver, contrary to his evidence, who had opened the doors in the first place, not Mr Bolito or Mr Damiano by the improbable means of an external safety device. Once on the bus, the judge accepted that Mr Damiano was in a position to see more than Mr Boyd, who, incidentally, got the colour of Mr Bolito’s trousers wrong. The judge was in no doubt but that when the driver operated the switch to close the doors, Mr Bolito was between them, not clear of them as the driver suggested; but this was what the driver himself had said in re-examination (see paragraph 51 of the judgment). The judge found that the doors closed onto Mr Bolito while he was looking at the approaching girls, encouraging them to move on. He accepted evidence that there was a look of panic on Mr Bolito’s face when the doors closed onto him. This was contrary to Mr Boyd’s evidence, who did not believe that Mr Bolito was trapped or in peril. Mr Boyd could not see whether his feet were balanced or unbalanced; this in turn made it difficult for Mr Boyd to assess whether Mr Bolito fell or jumped intentionally from the bus.

There is much more detail than this in the 29 paragraphs of the judge’s judgment, in which he analyses the evidence and makes his findings of fact on much of its detail. It is not only detailed but, to my reading, entirely coherent. The defendants no doubt believed that with Mr Boyd to support their driver they had a good case at first instance. They were, as it turned out, incautious enough to accuse Mr Damiano of being dishonest; the judge did not consider him to be so. The defendants were no doubt disappointed that the judge had decided the facts wholly against them, but it was in my judgment open to him to do so and his factual conclusions are not amenable to appeal.

For these reasons, as I have already indicated, I shall dismiss this renewed application.