Smith v Nottinghamshire Police

The centre of Nottingham seems to be quite a lively place on a Friday night. The young – and even the not so young – flock to the bars and restaurants in the Castle Wharf area by the canal and spill onto the pavements in high spirits, some the worse for drink. On 25th February 2005 one of the revellers was 16 year old Rebecca Smith. She had been enjoying a good night out with her friends when disaster struck. While crossing Canal Street at 10 minutes past 10 she was struck by a Volvo police car responding to an emergency call. She may be lucky to be alive but her life is forever blighted by the catastrophic injuries she suffered that night. In the trial of the issue of liability in her claim against the police for substantial damages in excess of £1million, Mr Recorder Herbert, sitting in the Nottingham County Court on 14th January 2011, found her to be three quarters to blame. Was that the right apportionment? Rebecca appeals and says, “No.” Was he even right to find the driver of the police car negligent at all? The Chief Constable appeals and he too says the Recorder got it wrong.

Canal Street is a main thoroughfare running east to west through the centre of Nottingham. As Canal Street leaves the A60 at its eastern end, it is 5 lanes wide. Traffic flows one way. It passes under the tram viaduct at a junction with Middle Hill controlled by traffic lights. The stop line at this junction was used by the Accident Reconstruction experts as the datum for measurements to the point of the accident. The road passes the Nottingham Crown Court on the left (the southern side) and the Broadmarsh Bus Station and car park on the right. Just before the junction with Carrington Street the nearside bus lane filters left into Carrington Street. There is a parallel bus lane allowing the buses to filter right off Carrington Street in order to cross Canal Street into the bus station to the east of Carrington Street. This crossing is controlled by traffic lights and there is a stop line in Canal Street before the bus lane which crosses it. This stop line is 125 metres to the west of the Middle Hill stop line. Approximately 30 metres beyond this stop line is a pedestrian crossing some 4 or 5 metres wide, then a cycle track, then Carrington Street itself and, to the west of Carrington Street a second pedestrian crossing. One begins to cross Carrington Street itself about 22 metres after the stop line. On the far side of Carrington Street there is a book shop on the north-west corner and fixed to it or near it is a CCTV camera looking to the east and recording the passage of traffic along Canal Street from just before the stop line at the Middle Hill junction and to a point where traffic goes out of view of the camera just before the stop line before the bus lane.

On the southern side of Canal Street to the west of Carrington Street is a pine furniture shop, a public house, an open forecourt behind which is a restaurant, the Canal House Restaurant and Bar, and then moving towards Castle Wharf another bar, the Via Fossa, and beyond that a cash machine which is 98 metres from the second pedestrian crossing. There are 3 sets of railings on the southern side of Canal Street which limit access from the footway onto the carriageway. If one stands on the pavement outside the Canal House Restaurant one can see a portion of green traffic light on the south-western corner of the junction controlling traffic in Carrington Street travelling to the north. At night Canal Street is lit by high pressure sodium lighting providing adequate illumination to reveal pedestrians in the road. The road itself is 12.5 metres wide divided into 4 lanes each approximately 3 metres wide. The traffic continues to run one way. The road is subject to a 30 mile per hour speed limit.

PC Avann, the driver of the police Volvo, gave evidence. He was a grade 1 advanced police driver with a clean driving record, authorised to drive high-powered police vehicles on response and pursuit duties. He was on mobile patrol accompanied by PC Byrne in a fully liveried police Volvo. When driving in Canal Street about level with the Nottingham Crown Court, or even earlier, he received a call to attend an incident where 3 men were alleged to be dragging another from his vehicle. It being an event where there was a risk of injury to a person, he responded to the urgency and sped away to attend it engaging the blue lights and, according to him, for it was a fact in issue, switching the separate switch to sound the police siren. As it happens there was a police van some 6-7 seconds and approximately 100 metres ahead of him as the CCTV film showed. The police transit was also travelling in the third lane of Canal Street at about the same speed or perhaps slightly slower than the police Volvo. Other witnesses describe that speed as between 40-50 mph as it passed along that section of Canal Street after the Carrington Street junction. The Accident Reconstruction experts did not disagree with that speed bracket.

As PC Avann approached the Carrington Street junction, the lights were showing red as they were for the police transit van which drove through the junction against the red signal. He was unable to say at what speed he was travelling on his approach to the Carrington Street junction or, indeed, in the moments immediately prior to the collision. He says he slowed down to “approximately 10 mph”, observed the junction openings and pedestrian crossing, considered it was safe to continue as the crossing was clear and he could see into the junction so he began “to accelerate away from the lights gradually”. The road ahead was clear and visibility was good and he could see clearly across all four lanes. There were no parked or waiting vehicles on his nearside. He was now in the second of four lanes from the nearside. He was aware of the presence of the public houses to the south side of Canal Street and that was why he was using lane 2 so as to pass through as far away from the southern footway and any pedestrians thereon as reasonably practicable. He knew there were a large number of pedestrians moving about on both sides of the road and he knew some might be the worse for drink.

He said, “As I was making my way along Canal Street a group of pedestrians ran out from the nearside footpath diagonally crossing only a matter of feet in front of the patrol car. The group appeared to be completely unaware of my presence and had run out without even looking.” He applied his brakes and steered to his offside towards lane 3. He said, “Only a few feet in front of me I saw a lone female running from my nearside directly towards the front of the car. She paused for a moment in front of the car and looked straight at the patrol car. Then for no reason she ran forward again directly into the path of my patrol car. I could not have done anything to avoid colliding with her. I was already braking and steering towards lane 4 having avoided others crossing.” In his evidence in chief (p. 724) he said he passed the first three pedestrians on his nearside.

In his oral evidence he described slowing down before the junction with Carrington Street and probably moving down into second gear. He found it difficult to indicate where he began to accelerate again but did say he would only have accelerated away once he had confirmed in his own mind that the Carrington Street junction was clear and it was safe for him to proceed. He said he would have commenced to accelerate again before reaching the first pedestrian crossing because by that stage he would have been aware it was safe for him to proceed through the red light. He said (p. 726) that Miss Smith stood on the white line markings between lane 3 and lane 4. “I thought Miss Smith was going to remain where she was … seemingly at the very last second, Miss Smith took another pace forward, the car struck her and the next thing that happened is that she hit the windscreen on the passenger side …”. It is common ground that the front nearside headlight struck Rebecca, flinging her up onto the bonnet and into the windscreen in front of PC Byrne and then causing her to rotate upwards to land on the roof of the police car where she lay deeply unconscious with a depressed comminuted skull fracture of the right parietal bone, fractures of the right frontal mastoid through the right orbital roof in a coma with a Glasgow coma score of only 3/15.

Cross-examined, PC Avann said (p. 255) “simultaneously all four people ran into the road. … all four, like a line, straight out. I was past the [Carrington Street] junction [when I first saw any one of the Group].” He agreed that he had seen and read the Nottinghamshire Police Response and Pursuit Driving Policy.

Despite opposition, the Recorder allowed the defendant’s application to put in evidence a statement made by PC Byrne. It had been expected that he would give evidence by video link from abroad. Allowing this hearsay was a permissible exercise of the Recorder’s discretion. He confirmed that PC Avann had activated both the audible and visual warning equipment. He confirmed that as the police Volvo approached Carrington Street PC Avann slowed the car to a speed where he could stop in a distance he could see to be safe but there were no vehicles approaching from the nearside nor any pedestrians crossing or about to cross from either side and so he said PC Avann accelerated “progressively from the lights in lane 2.” He then said that “within seconds of passing through the lights I was aware of a group of pedestrians running over the road to the front from left to right. PC Avann started to brake and move to the offside allowing the group to pass safely in front.” He then looked to his nearside and saw a young female running after the group. She appeared to have her head down. She appeared to hesitate while safely in lane 2 then ran again attempting to cross in front of the police car. The distance at that stage would only be a matter of feet from the front nearside bumper. “The girl then realised that she had run in front of us and looked up. We briefly had eye contact for less than a second as she stepped in front of us.”

The Recorder had before him reports from the claimant’s and defendant’s expert Accident Reconstruction Engineers and their agreed joint statements. There was no substantial disagreement between them. They were not called to give evidence.

On the basis of the expert analysis of the evidence found at the scene and the damage to the police Volvo, the judge made the following findings of fact at [77]:

The collision occurred at about 23 metres east from the front of the police Volvo’s position post impact. That also locates the collision about 30 metres beyond the second (most westerly) pedestrian crossing at the Carrington Street junction.

At impact the claimant had reached a position about 8 metres from the southern kerb line and so was about in the middle of lane 3.

At impact the police Volvo was travelling at a speed in the range of 35-40 mph.

At impact the police Volvo was both braking and swerving to the right and following a path from lane 2 into lane 3 before finally coming to a stop in lane 4.

Before braking and swerving to the right the police Volvo was travelling at a speed in the range of 45-50 mph.

At the moment of impact the claimant was moving “quickly” across the path of the car. The Recorder relied on the experts who said: “We agree that the alignment of the damage to the police car, in combination with its path across the road, suggests that Rebecca Smith was moving quickly across the path of the car at the moment of impact but we also agree that this does not show how she had moved across the road up to that point.”

A large number of witness statements were taken by the police after the accident. A number were put forward by the defendant’s solicitors who asked whether any could be agreed. The claimant’s solicitors identified 5 witnesses whose statements they were prepared to agree. The Recorder therefore treated the statements of those witnesses on the basis that each witness had been called by the defendant to give evidence, had given evidence in accordance with his or her witness statement and had not been challenged on that evidence. I can see no error in the Recorder proceeding in that way. Because other witnesses could no longer be traced by the time of the trial hearsay notices were served on behalf of the defendant in respect of statements made from 4 other witnesses. In their reports the experts had referred to the evidence in other witness statements given to the police including statements given by 3 friends of Rebecca who were with her that night. The Recorder overruled the objection taken by Mr John Leighton Williams Q.C. for the claimant and ruled that he could properly take that evidence into account as hearsay evidence but he added:

Dealing first with the agreed evidence, Mr Benjamin Fenton was a third year undergraduate who was out with his fellow students. He was near the cash machine. He was aware of the police van passing and as he turned back to look down Canal Street he saw the police Volvo with flashing lights and a siren sounding. As he watched he saw “a lone female walking from the nearside lane to the middle lane when I realised the police car was also in the middle lane so was she. I then saw the girl start to run from the middle to the third lane. At the same time the police vehicle had also moved to the third lane.” He estimated the speed of the police car to be 40-50 mph. His impression of the accident was that “The police officer driving the police car should have noticed the girl in the middle of the road and stopped. It appeared to me that he did not slow down, but attempted to guess which way she was going to move, taking evasive action but not guessing correctly.

Michael Freeman was another Nottingham University student who was also at the cash machine. He could recall the passing police van and was then aware of the second police car with its flashing lights on the roof though he could not remember hearing whether the siren was working or not. He became aware of a pedestrian in the road positioned as he looked back on the scene on the left hand edge of the second lane from the right but he had not seen how the pedestrian got to that point. She seemed to be “walking quickly but not running.” He was unable to say who reacted first, the police car or the pedestrian. “The pedestrian suddenly became aware of the police car and “darted” towards the far side of the road in the direction of the dark car park … At the same moment the police car became aware of the pedestrian and took evasive action, swerving to the driver’s right … As I watched I saw the police car strike the pedestrian on its front left-hand side.”

Kasid Hassan was driving his car along Canal Street and stopped by the cash machine. The police van passed. Seeing another set of blue lights in his mirror, he looked over his shoulder and saw a girl crossing on her own in the road. He had seen her earlier “with two guys and another girl”. They were messing about, one guy on the other’s shoulders and the girls having a laugh”. The police car was moving forward as she was crossing the road. She looked like she was “marching across, not running, more like a fast walk”. The police car had its blue lights on. He does not mention the siren. It was doing 50-60 mph. But “you couldn’t miss it”. “She was heading towards the police car, and the car went to its right to avoid her. If she had stopped where she was the car would have missed her but she seemed to make a ‘leap’ like a short of jump, towards the car. The police car was braking.”

The other two witnesses whose statements were agreed took the matter no further and the Recorder did not need to refer to their evidence.

Of the witnesses whose statements were subject to the hearsay notices, Graham Osborne, another at the cash machine, saw the blue lights and “believed” its siren was sounding. He was aware of a silhouette in the middle of the four lanes. Immediately the police car started to take the avoiding action by moving to the offside, “the female appeared to start to speed up” and in doing so moved further into the path of the police vehicle. “It was an unfortunate set of circumstances and had one of the parties not taken avoiding action then I don’t think that she would have been hit.”

The other three hearsay witness statements placed before the Recorder added little.

The claimant called two witnesses. The first was Mrs Joan Matthews, a self-employed consultant advising on self-development matters. The judge considered her to be “confident witness”. “She was clearly honest and doing the very best she could to recall what she remembered of the accident.” She had been in the Canal Street Restaurant set back by a courtyard from Canal Street, so, very roughly, about opposite the point of impact. She did not see the claimant step off the kerb but noticed her in the first carriageway crossing the road. In her police statement she said, “She wasn’t walking across the road very fast, in fact I would describe it as ambling across.” She then became aware of the presence of the police vehicle travelling along the road. “It just seemed to have appeared on the road between the girl and Carrington Street. I do not know where this vehicle came from, it was just there.” “It just seemed to suddenly turn up, whistled in, it was there, just behind her.” “The speed of the vehicle was alarming. It seemed like it was going “like a bat out of hell, at such a rate, it seemed to be doing 70 mph. Very fast.” Under cross-examination she agreed 70 mph was probably an exaggerated estimate. At some point it seemed to move over towards its right and her impression was that she thought it was being driven close to the girl to frighten her for being in the road as she was certainly not then expecting a collision between the two. She put this graphically in her witness statement:

Cross-examined by Mr David Boyle, for the defendants, Ms Matthews said that the claimant was walking or meandering slowly across the road. She had travelled between a half and three quarters of the way across the road whilst in her view. The claimant moved across in front of the car which she accepted might have been trying to avoid colliding with the claimant.

The Recorder said this of Ms Matthews:

I confess I am a little troubled by that last observation by the Recorder. To repeat that other evidence, Mr Fenton said she was walking across the road but started to run from the middle to the third lane; Mr Freeman said she was walking quickly but not running and then “darted towards the far side”; Mr Hassan spoke of her “marching across, not running, more like a fast walk” with a “leap like a sort of jump towards the car” and Mr Osborne who saw her at the last moment when she “appeared to start to speed up”. To be fair to the Recorder, he did refer to that other evidence later in his judgment.

The second witness called by the claimant was Mr Adam Chir, another student waiting by the cash machine. He saw the Volvo braking hard from a speed he estimated between 40-50 mph. The vehicle was steered as it slowed from the central lane to the fourth lane. He did not see why the police vehicle behaved in that way until he saw a female right in the middle of the road in front of the police car. She appeared to be panicking which way to go as the police vehicle was changing lanes to avoid her. However both the vehicle and the female chose to travel into the same lane and the police vehicle hit her more or less centrally. Cross-examined he spoke of the pedestrian moving “relatively fast” to get out of the way of the police car and of her having “ran” in front of the police Volvo whilst it was braking.

Mr Christopher Anderson, a consultant forensic engineer, prepared a long report for the claimant with which the defendant’s expert, Mr Peter Sorton, was in substantial agreement. Their joint report includes these material matters, in addition to those to which reference has already been made:

Having briefly outlined the facts of the collision and discussed the evidence before him, he addressed the law, saying correctly that emergency vehicles are expressly exempted from the criminal process relating to speed limits and traffic lights. Then he added:

So the Recorder formulated the appropriate test for the duty to take reasonable care in a case such as this in the following terms:

In the light of the criticisms made of this approach made by Mr Leighton Williams, let me comment about it immediately. As Lloyd L.J., who was a member of the Court in Keyse pointed out in the course of argument, Keyse was a completely different kind of case. The accident took place in a residential area which was not very well lit. The claimant would not have shown up “particularly well”. The impact happened halfway across the car’s lane. Judge L.J. pointed out that none of the road traffic regulations sanction negligent driving or indemnify the negligent driver of a vehicle on emergency duty against civil liability. “The duty of the driver to take care remains undiminished.” The Recorder cited part of paragraph 31 but it is useful to see the sentence which precedes that citation:

As for the test formulated by the Recorder, it would have been more appropriate to arm the driver with the experience of the way pedestrians are “liable” to behave rather than the way they are “likely” to behave, especially since, as he said, the “possibility” of danger emerging is something which may reasonably have to be anticipated and guarded against.

Turning now to the facts found by the Recorder, I have already recited his findings made in paragraph 77 (see 11above). He went on to make these further findings:

Then he turned again to the law and referred to Baker v Willoughby [1970] 2 W.L.R. 50, ([1970] A.C. 407), Lunt v Khelifa [2002] EWCA Civ 801, Tremayne v Hill [1987] RTA 131, Eagle v Chambers [2003] EWCA Civ 1107 and in the light of those authorities approached the question of contributory negligence on the following basis:

He did not understand Baker v Willoughby to be a case where the court was denying that a pedestrian may sometimes be very much more to blame than a motorist. It must depend on all the circumstances. Lunt v Khelifa also depended upon its particular facts. Tremayne v Hill wasa completely different case from the matter before him. He distinguished Eagle v Chambers by commenting that “In this case the Claimant did as I have found ‘suddenly move’ into the path of the approaching car.”

It did not seem to him that the fact that the claimant’s alcohol level was in excess of the legal limit for motorists in any way affected the blameworthiness of the claimant.

So he concluded:

Mr Leighton Williams complains in his first ground of appeal that the Recorder failed to keep an open mind on the issue of contributory negligence. When the question arose in the course of his opening (see p. 604) this exchange took place:

The Recorder’s approach to contributory negligence was summarised by him at [100] where he correctly stated the law to be that: “The court will have regard not only to the relative blameworthiness but also to causative potency so that a motorist, at the wheel of a potentially lethal weapon, will often bear a greater share of the blame than the pedestrian.” It is well settled that there are these two aspects to apportioning responsibility between a claimant and defendant, the respective causative potency of what they have done and their respective blameworthiness: see, for example, Davies v Swan Motor Company [1949] 2 K.B. 291 per Lord Denning at p. 326 and Baker v Willoughby [1970] A.C. 467 per Lord Reid at p. 490. Moreover, as Latham L.J. observed in Lunt v Khelifa [2002] EWCA Civ 801 at [20]:

I do not wish to be too critical about the Recorder’s belief that there is “no fetter on the trial judge” which tends to suggest that he considered he had an unfettered discretion to “apportion blame in whatever shares he [the trial judge] deems to be appropriate.” To be pedantic about it, the trial judge, having paid due regard to the authorities, must make a value judgment “as the Court thinks just and equitable having regard to the claimant’s share in the responsibility for the accident”, to quote section 1(1) of the Law Reform (Contributory Negligence) Act 1945. As for our approach, we are indeed slow to interfere with assessments of contributory negligence but we must and do interfere when some error in the judge’s approach is clearly discernable.

I do not find any discernable error in the Recorder’s treatment of the evidence of Mrs Matthews. He had the advantage denied to us of seeing her give evidence and his conclusion that she was “somewhat muddled” is unassailable. Although she was confident and her descriptions graphic, he was entitled to find she did not see the claimant until she (the claimant) had reached the second lane. Some judges may have been satisfied that her view of the claimant over the next four or five metres to the point of impact in the middle of lane 3 was long enough to justify the impression she honestly held that Rebecca was sauntering across the road much more slowly than Mrs Matthews herself would do when crossing it. That others may have taken a different view is nothing to the point. The Recorder’s finding that she was walking quickly cannot be set aside even though under cross-examination Mr David Boyle did not suggest (p. 635) that what Mrs Matthews recalled was wrong. The Recorder was entitled to have regard to the other evidence, albeit not oral evidence, of the claimant walking across, or walking quickly across, or marching across the road. The truth is these were all impressionistic accounts based on fairly fleeting observation.

I am less happy with the Recorder’s taking the initiative without any prompting from Mr Boyle for the defendant to admit as hearsay the statements of Rebecca’s friends. In adversarial proceedings as these were, his true task was to decide the case on the evidence the parties chose to put before him. These statements had been placed before the experts who summarised them in their reports but no hearsay notices had been served in respect of them. The mere fact that they had been disclosed as part of the police report does not make them evidence in the case. The statements contained information which may have been used in cross-examination but in my judgment Mr Leighton-Williams was right to object to the judge treating them as hearsay simply because of the reference to them in the experts’ report. In argument the Recorder expressed surprise that the defendant had not sought to adduce this evidence saying at p. 692, it was “clearly extremely material” but then, having considered the material, he said in his judgment at [22] that the evidence was not of any help in relation to the material issues he had to decide. One such material issue was the speed at which Rebecca crossed the road and in finding she crossed quickly, he found at [85] that the probability was that her three companions had already crossed Canal Street “and thus there would be no purpose in her crossing slowly”. But for their evidence there was no evidence to fix the whereabouts of Rebecca’s companions. This evidence did, therefore, affect his decision in a way it should not have done and, although there may not be a significant difference between the speed of walking and walking quickly, it seemed to be a material fact in the Recorder’s mind. In this respect he erred.

Mr Leighton Williams complains that the Recorder failed to scrutinise the evidence of PC Avann and PC Byrne and wrongly accepted what they said save where they were clearly contradicted. In my judgment he could easily have found that they had colluded in preparing the statements they gave in the course of the police investigation into this accident. He could justifiably have found that their evidence was so obviously exculpatory as to render the whole of it unreliable. He did not do so. His impression that PC Avann was honest but mistaken may surprise some but it was within the ambit of what he was entitled to find.

The Recorder’s finding that PC Avann activated the siren is under particular challenge based on the officer’s confusion about whether one switch operated both the lights and the siren as he originally said or whether they were separately controlled as he had to concede under cross-examination. Since there was some, but not unanimous, evidence from others at the scene that the siren was operating, that finding was open to the Recorder to make.

The Recorder’s finding that they responded to the emergency call when opposite the Crown Court may be more doubtful because the CCTV photographs do show a blue tinge about the Volvo when it had not yet reached the Crown Court. This is a tiny point which makes no material difference to the outcome of the case. If they had responded earlier and so accelerated earlier they may have been going faster through the junction than if they had reacted only when closer to it. In my judgment the point does not much matter given that the experts calculated that the average speed between the points covered by the CCTV was 40 mph so it was probable that, having accelerated in response to the emergency, the Volvo had sped up to 45 mph as it passed out of view.

The first matter to deal with is the question of excessive speed. As I have just stated, the Volvo was travelling at 45 mph as it approached the junction. If there was any slowing down as it did so, it was, as the Recorder found, by a few miles per hour only. Before braking to avoid the accident, the speed of the vehicle had increased to 45-50 mph.

PC Avann acknowledged under cross-examination that he had read and was familiar with the Nottinghamshire Police Response and Pursuit Driving Policy and he ought, therefore, to have followed its instruction which required him, when responding to an emergency call, to address the question, “What are the prevailing traffic conditions?” He knew that a large number of pedestrians could be expected to be in the vicinity at that time of night, some of them under the influence of drink. And he knew that the car parks and bus station were on the other side of the road from the restaurants and bars. He could expect pedestrians to be crossing the road without using the pedestrian crossings. The policy also required him to consider how far he had to travel to the call to which he was responding. In this instance the emergency was 1350 metres away; so, if he had been travelling at 40 mph he would have delayed his arrival at that scene by about 30 seconds or less. If he had travelled at 40 mph the accident could have been avoided. Paragraph 1.1 of the policy is on “The Importance of Safety” and it reads:

In the light of the evidence that had PC Avann reduced his speed to 40 mph then the collision would have been avoided, the Recorder’s finding was inevitable that in all the circumstances to which he properly had regard, PC Avann was negligent in travelling at a speed between 45-50 mph through the traffic light controlled junction with Carrington Street and into the section of Canal Street where the collision occurred. The cross-appeal against that finding of primary liability is hopeless and I would dismiss it.

Whether or not he kept a proper lookout depends on when he ought to have observed Rebecca crossing the road. She had advanced 8 metres from the kerb to the point of impact (possibly more if, as to which there is no finding, she walked diagonally across the road as both Mrs Matthews and PC Avann had, in different ways, described her as doing). The Recorder found that she walked quickly and paused before moving more quickly in her attempt to avoid the collision. The experts agreed in paragraph 4.4 of their joint statement:

Let me look at it another way. If she had walked to the middle of the second lane before stopping, she would have covered about 4.5 metres and at a fast pace of 1.92 metres per second she would have taken 2.34 seconds to cover that distance (4.5 divided by 1.92). She then moved 3.5 metres at a quicker pace or at a run, so taking that speed from Mr Anderson’s table 4, she was covering the ground at 3.75 metres per second and thus would have taken 0.93 seconds before she was struck by the oncoming police car. If one allows only 0.75 seconds for reaction time, the time taken from stepping off the kerb to the point of impact would be just over the 4 seconds, which is the time the Recorder allowed for this manoeuvre. So let me work on her being on the road for 4 seconds.

Looking at the matter from PC Avann’s perspective, his response time was, as I have set out, accepted by the Recorder to be somewhere between 0.9 and 1.6 seconds, somewhat longer than the Highway Code’s allowing 0.6 seconds to react. The experts agreed that the time taken for braking and swerving would be between 1.3 and 1.6 seconds. Thus, as the Recorder accepted, the time taken from the moment of seeing the claimant to the point of impact is somewhere between 2.2 and 3.2 seconds (0.9 + 1.3 or 1.6 + 1.6).

If one accepts the Recorder’s estimate of Rebecca being in the road for 4 seconds and one deducts PC Avann’s reaction time and braking time, then it means that Rebecca was in the road for between 1.8 and 0.8 seconds before she was seen (4.0 – 2.2 or 4.0 - 3.2). In the view of the joint experts, as recorded in the judgment at [88], it was slightly longer. They said at 7.4:

Let me assume that she was in the road for between 1 and 2 seconds, and the question is whether she should have been seen or not, it is also pertinent to see how far she had walked in that time. According to Mr Anderson’s table, at a normal pace, the pedestrian covers 1.62 metres per second and at a faster pace 1.92 metres per second. Taking the higher figure because she was walking quickly, she would have advanced 1.92 metres from the kerb in 1 second and 3.84 metres in 2 seconds. At the outer extremity of this bracket, she would have been 0.84 metres into the second lane when she was seen by PC Avann. The impression I have from reading the whole of the evidence is that each became aware of the other at about the same time so placing her in the second lane when she was seen by PC Avann accords, more or less, with the Recorder’s finding that she was in the middle of the second lane, i.e. 4.5 metres from the kerb, when she froze before making her ill-fated leap for safety. Whether she was 3.84 or 4.5 metres into the road, she must have taken a good number of steps to get there.

Next I wish to examine the Recorder’s conclusions in [90]:

The experts are not of great help and leave vague the point at which the claimant ought to have been seen. Their view, dealing with visibility was:

In my judgment one must not get too influenced or led astray by mathematical calculations in reconstructing this accident. Just examine the evidence. PC Avann said he had slowed down to 10 mph going through the junction. He did not do so. He approached it at about 45 mph and if he slowed down it was hardly at all. On his own admission he was already making his way along Canal Street to the west of the junction when he saw the lone female only a matter of feet in front of him. He did not see her step off the pavement. He did not see her walk to the point where her presence did alert him. That was when she had already reached the middle of the second lane. We know that at that moment he was doing between 45 and 50 mph in an area where he could expect pedestrians to be crossing the road. It was too fast. The pedestrian was in the road for an appreciable time. On this well illuminated carriageway, her wearing dark clothing cannot explain his not seeing her. She was seen by those outside the cash machine and that was about 70 metres away from the impact site. Visibility travelling west down Canal Street extended for not less than about 150 metres. She had stepped off the kerb before he reached the stop line at the junction. In my judgment PC Avann failed to keep a proper lookout for the speed he was doing.

It follows that the Recorder erred in finding PC Avann to have been attentive and clearly keeping a proper lookout for any pedestrian that might be crossing the path of his approaching car. My conclusion on the totality of the evidence is that he plainly should have seen her. I would therefore allow the appellant’s appeal.

I have now to ask what is the just and equitable reduction to make having regard to the claimant’s share in the responsibility for the damage she suffered. Her damage was caused partly by her crossing the road when it was unsafe to do so. She put herself in danger. There was no justification for the Recorder finding she showed a “reckless disregard”, his emphasis, for her own safety. The major cause of the injury she suffered was her being struck by the Volvo travelling at an excessive speed in circumstances where it could not be brought to a halt in time to avoid the accident. At 40 mph PC Avann could have stopped and the claimant would not have been injured. He did not see her but then she did not see him. She was more to blame for her misfortune than a pedestrian crossing the road in front of an ordinary car because she failed to heed the flashing lights and the siren but the major responsibility for the damage and therefore the more causatively potent factor was the negligent driving of what was and what unfortunately became a dangerous weapon.

I would therefore hold the defendant responsible for two thirds of the claimant’s damage and would allow the appeal accordingly.

I agree that the defendant’s appeal should be dismissed, and that the claimant’s appeal should be allowed to the extent stated by Ward LJ, for the reasons that he gives.

It seems to me that one of the most telling criticisms of the recorder’s judgment advanced on behalf of the claimant is his treatment of paragraph 5.1 of the expert’s agreed statement, quoted by Ward LJ at paragraph [24] above, as if, instead of saying “would have been visible to the attentive motorist approaching through the junction”, it had said “would not have been visible to the attentive motorist until he approached through the junction”: see how the recorder put it in his paragraph 90 quoted by Ward LJ at paragraph [29] above. Given the recorder’s own statement at paragraph 14 of that which was not in dispute, namely that visibility to the accident scene for a drive travelling west extended for not less than 150 metres, his conclusion that the claimant would not have been visible until PC Avann was no more than 45 metres away from her is untenable.

I agree, in particular, with what Ward LJ says at paragraph [52] above, taken with the recorder’s pertinent point at his paragraph 97, quoted by Ward LJ at paragraph [29], that the driver’s unacceptable evidence that he slowed down to about 10 mph on approaching the junction shows that, with hindsight, he knew that it would have been right to have slowed down substantially at that point. It seems to me clear that the driver could and should have seen the claimant sooner than he did and that, taking that together with his excessive speed as found by the recorder, his responsibility for the accident was significantly greater than that of the claimant. On that basis a finding of one third by way of contributory negligence on the part of the claimant is appropriate.

I agree with both judgments.