Osei-Antwi v South East London & Kent Bus Company Ltd

The 15 June 2005 was a lovely summer’s day. In the late afternoon the appellant set off for work. She took a number 112 double decker bus to Crystal Palace Parade. She got off the bus and headed down the pavement intending to cross over the road at the junction of the main road and the bus depot. She stood waiting to cross the road by some safety railings. She claimed that she was on a designated paved area clearly intended for pedestrians. The bus driver, a Mrs Coughlan, attempted a sharp left hand turn into the depot. As she did so, the rear of the bus hit the appellant and crushed her against some safety railings. The appellant suffered a broken ankle and a damaged knee. She sued the operator of the bus for damages. The bus company defended on the basis the appellant was in the road on the wrong side of the railings “where pedestrians were not meant to be”.

In summary, the particulars of negligence alleged against her were: taking up an obviously dangerous position, namely the wrong side of the railings, failing to keep a proper lookout, failing to have regard to her own safety and the presence of buses entering the depot, and failing to heed a number of paragraphs of the Highway Code, in particular paragraph 9 which relates to barriers at crossings.

Battle lines having been drawn, the matter came on for trial before HHJ Matheson QC at the Mayors and City of London County Court on 30 April 2009. He found the respondent bus company liable in negligence but the appellant one third to blame for her accident. She has permission to appeal the finding of contributory negligence.

Mr Grant Lazarus for the appellant places great emphasis on the judge's primary finding, against which there is no appeal, which was that the appellant, when hit, was standing on a studded pedestrian area of the pavement over which buses should not have travelled. The studs are intended to act as a indication to a blind person of where they may stand safely. The judge found in terms that the appellant was positioned roughly where she claimed to be, namely on the pavement some inches from the road. If so, Mr Lazarus argues, it was wholly wrong for the judge to make any finding of contributory negligence let alone a finding the appellant was one third to blame.

It is important to note that the judge, in accepting the appellant's evidence as to her position, referred to a photograph provided at page 120 of the trial bundle and at our page 168. This photograph shows the appellant well on the pavement and off the road. Looking at that photograph, the judge qualified his finding slightly by saying the appellant was “probably a little closer to the kerb” than the photograph shows. Mr Lazarus emphasised that the phrase “a little bit closer” changes by the time the judge gets to paragraph 33 of his judgment and the finding of contributory negligence. In paragraph 33 the judge found that the appellant was standing “very close to the edge”. He said this:

“The question I have got to ask myself is whether or not that amounts to contributory negligence, whether she should have been keeping a good look out to get out of the way if she saw the bus coming too close as it swung round the corner.”

He continued at paragraph 34:

The reference to Chapman was a reference to one of two authorities put before the judge. The appellant relied on Chapman v  Post Office [1982] RTR 165. I should say that, as is so often the case, the facts of each of the authorities put before the judge were very different from the present case, and for my part I do not find them particularly helpful. However, counsel attempted to extract principles of a general application from them. Mr Lazarus relied on the entire judgment of Lord Denning MR, at page 166 of Chapman as authority, as he would have it, for the proposition that it can never be negligent for a pedestrian to stand close to the edge of a kerb when waiting for an opportunity to cross the road ahead.

Mr Lazarus complains that the judge's brief reasoning does not come close to providing a sound basis for a finding of contributory negligence. He maintains that the proposition that even if the appellant was on the pavement she should have kept a good lookout for vehicles turning and she should have got out of the way was never actually put to her. We have the benefit of a transcript of the cross-examination of the appellant. It is clear to me that Mr Mendoza for the respondent bus company put his primary case that the appellant must have been standing in the road or she would not have been hit. Somewhat tentatively, in my view, he put a secondary case that she was too close to the edge. He did not, however, explore in any detail an alleged failure on her part to keep a proper lookout whilst standing on the pavement and to move out of the way as the bus turned the corner.

Mr Mendoza valiantly tried to resist the appeal by accepting that the appellant was on the pavement when hit but reminding us that the judge found she was standing very close to the edge. The appellant knew that the bus was coming around the bend and she knew that it was a tight left-hand bend. He argued that somebody in that position, waiting to cross the road, is obliged to stand back from the edge. He said that, given the bus's speed of three to four miles per hour, the appellant had plenty of time to react to a developing situation. As it was, she stayed put and realised the danger far too late. He submitted it was a perfectly legitimate exercise for the judge to explore whether even if the appellant was on the studded area she had failed to keep a proper look out and to take evasive action. Further, he argued the judge was entitled on the evidence to make the adverse findings that he did. He reminded the court that, in his Defence, he had always relied upon the Highway Code, including rule 7 which includes the Green Cross Code. The Code advises pedestrians not to get too close to traffic as they wait on the kerb to cross. According to the Code, if there is no pavement a pedestrian should keep back from the edge of the road, making sure they can still see approaching traffic. Pedestrians are directed to look around for traffic.

I note, however, that in the Defence, consistent with the respondent's primary case that the appellant was in the road and the wrong side of the railings, the only part of the Highway Code actually rehearsed relates to the need for pedestrians to pay proper heed to the positioning of safety barriers and the need to stay the right side of them.

This court has said on many occasions, as Mr Mendoza has reminded us, that it will not readily interfere with a trial judge's apportionment of blame. However, in my view, this is one case where we should interfere. The judge's reasoning is brief and, as I understand it, it comes to this: the appellant was standing on the pavement too close to the edge of a junction where she knew buses had to make a tight turn; she should have kept a proper lookout as the bus came round the corner. Had she done so, she would have taken evasive action.

To my mind this ignores three facts. First: the judge's own finding that she was standing on the pavement, an area designated for pedestrians, including blind pedestrians. She was standing “roughly”, using the judge's own words, “where she said she was standing on the photograph”. This would mean that she was still several inches back from the edge of the road. Second, the respondent's own case that buses did not normally cross the pedestrian area. Third, given the angle of the bus, it must have missed the appellant by some margin at the beginning and in the middle of its turn. It was only the rear of the bus which clipped her; the manoeuvre was coming to an end when the danger arose.

Thus, the appellant was not standing or walking in an obviously dangerous position. There were safety railings to some extent sheltering pedestrians from the road traffic. She was standing in an area designated for pedestrians to wait to cross the road. She was not doing anything inherently dangerous or risky and nor was the bus driver. There was nothing on the judge's findings about the driving of the bus to alert her to any danger before it turned. All were agreed, buses can and presumably, do make that turn safely hundreds of times a week without encroaching on the pedestrian area.

The appellant was keeping a proper lookout to the extent that she knew the bus was coming; she expected it to turn. Whatever her knowledge of the tightness of the turn, it cannot be said, to my mind, that, knowing a bus was about to turn, she was obliged to move further back and away from the road. She was standing in an area where vehicles were not meant to be and where, according to the respondents, they did not normally go. Had Mrs Coughlan got the angle right, there would have been no problem. Sadly this day a normally careful driver got the angle wrong.

Nevertheless, the front and the middle of the bus passed the appellant safely. Given Mrs Coughlan's failure to notice anything was wrong, the bus must have passed the appellant by some margin. It may have been close to the appellant but it was not close enough, it seems, to alert anyone to the danger until it was too late. It was only when the effect of the angle kicked in and the rear of the bus swung onto the pavement that people realised what was happing.

On those facts as found, it is not clear to me what it is said that the appellant did wrong which caused and/or contributed to the accident, apart from failing to realise until the very last minute that the driver had got the angle wrong and that the bus was going to hit her. I, for one, could find no basis for attributing blame to her, in those circumstances especially given the way the case was pleaded and run at trial.

In truth, this case was all about whether the appellant was standing on the road or on the pavement. If she was on the road, she may have been partly to blame or to blame for the accident. If she was on the pavement, approximately in the position shown, as the respondent virtually conceded during argument, there could be no apportionment of blame. Once the judge had found she was “roughly” where she said she was, on the facts here there was no basis, in my judgment, for making a finding of contributory negligence.

In those circumstances, I decline Mr Lazarus's invitation to come to any fixed conclusion on whether Chapman provides a principle of law that a pedestrian who is struck when standing on a pavement can never be held to blame.

For those reasons, and bearing very much in mind the customary reluctance of this court to interfere with the trial judge's findings, for my part I would allow this appeal and quash the finding of contributory negligence in its entirety.

I agree.

Huge though my admiration for HHJ Matheson QC is, I trust he will not regard it as at all discourteous of me when allowing an appeal from his order to say no more than I entirely agree with Hallett LJ and I to would allow the appeal.