Birch v Paulson

This is an appeal from an order of HHJ Stephen Davies sitting as a judge of the Queen's Bench Division dated 23 June 2011 whereby he dismissed with costs the claimant's claim for negligence against the defendant.

The proceedings concerned a road traffic accident which occurred on the evening of 28 May 2006. The claimant, who was a man aged around 34 at the time, was struck by a car driven by the defendant as he apparently sought to cross the A157 road near Irlham in Greater Manchester. He suffered very grievous injuries, including significant traumatic brain injury with permanent consequences. Substantial damages have been claimed in the proceedings.

The trial before the judge took place over three days and was confined to the issue of liability, including causation. By a most detailed and careful reserved judgment the judge found that the claimant was entirely responsible for the accident and the defendant bore no responsibility. Permission to appeal was granted by Dame Janet Smith, albeit in doing so she expressed reservations as to the strength of the grounds advanced. It should be noted that it is accepted on this appeal, as indeed it was in the court below, that on any footing there must be a substantial finding of contributory negligence even if the defendant were to be adjudged to have some responsibility.

The background facts are fully set out in the judgment below. Because they are set out in such detail in the judgment below they can be relatively shortly summarised for the purposes of this appeal in this way.

The road in question, Cadishead Way, is a single carriageway road with a lane of travel in each direction being separated by a broken white line. The width of each lane was 3.68 metres with a further 1 metre hard strip separating the lane from the kerb and with a solid white rumble strip dividing the lane itself from that hard strip. The kerbs were concrete with adjoining grass verges and footpaths at the edge of the verges with trees beyond. The speed limit at the relevant part of the road was 50 miles per hour.

There was, as found, an unobstructed view travelling south-west, as the defendant was, of some 300 metres before the point at which the accident occurred. Before that collision point there is a sign warning of a pedestrian crossing ahead. That crossing has two solid traffic islands and was itself some 140 metres north-east from the point of collision. At 55 metres beyond the collision location to the south-west is a further sign showing a reduced speed limit of 40 miles per hour and beyond that there is a roundabout.

The defendant was returning in her Fiat car from work at around 7.30 in the evening on Sunday 28 May 2006. The weather was fine and the road was quiet. She was very familiar with driving on that particular stretch of road. There is no suggestion whatsoever that she had been drinking or anything like that.

In the event, the claimant himself was, because of his grievous injuries, in no position to give evidence at trial. Although the defendant attended trial she also did not give evidence. This was not, as the judge was prepared to accept, for any tactical reason, but because she was still so traumatised about the whole matter and because she had, in effect, blanked things out. She had in fact been interviewed by the police shortly after the accident, but unfortunately the tape and transcript had been lost. She had, however, previously made a witness statement for the purpose of the proceedings before trial which the claimant elected to put in evidence. It may be added that the claimant himself had at the time been in the company of a male friend; however, that friend was later to say that he had been drinking during the day and that he had no recollection of any relevance of what had happened.

The only eye witness to give oral evidence was a Mrs Benson. Mrs Benson had been walking along the path on the other side of the road with her young granddaughter and her dog. Her attention was drawn to the claimant on the other side of the road along with his companion. Because of their behaviour and because they were weaving from side to side and because they were (or at least one of them was) waving a mobile phone, she thought they were arguing. Because she was accompanying her young granddaughter, their behaviour concerned her and so she kept an eye upon them. She formed the view that both had been drinking.

She then saw the claimant cross the verge and stand right up against the kerb as though waiting to cross. According to her he waited there for some time, around 15 seconds as the judge was prepared to find. Even though there was no traffic in either direction he made no attempt to cross at that stage.

Mrs Benson then saw a car, which in the event was the defendant's car, approaching. But the claimant still did not try to cross the road, but instead, as she described it, he rocked back and forward slightly; she also observed him shouting back towards his friend. Then, as she in effect said, when the car was a few metres from the man he stepped out; she did not say that she had actually seen the claimant run out into the road at that stage, but in her witness statement Mrs Benson said that the car driver had "no chance" of avoiding hitting the man. Overall, the judge's finding with regard to Mrs Benson's evidence was that it was substantially accurate in all important respects.

In her own witness statement the defendant had said that as she approached the traffic islands she had seen the two men on the path or on the verge but had not noticed anything strange about their behaviour. The next thing she remembered was a bang and the windscreen caving in.

Evidence was also given at trial by a police accident investigation officer and, furthermore, detailed evidence was given by two accident reconstruction experts. Quite a good deal of their evidence in fact had been the subject of prior agreement, although quite a lot was not the subject of agreement. One matter at all events that was agreed was that the point of impact was some 2.5 metres from the edge of the road.

The judge made this finding at paragraph 45 of the judgment:

The judge posed the central question for him to decide on the question of breach of duty in this way (and no one seeks to criticise it as an inaccurate way of putting it) as this:

The judge fully reviewed the evidence. He found that the claimant and his friend had been drinking, although they were not blind drunk. He found that their intention was to cross the A157 and there was no particular reason why they should not cross at that particular point, even though there was the pedestrian crossing further down the road. The judge expressly found that the defendant herself in her car (unlike Mrs Benson who was on the opposite side of the road keeping the claimant and his friend under observation) would not have appreciated that the defendant had been drinking and would not have seen the claimant until he was standing on the kerb and would not have seen him weaving or staggering.

The judge found that the claimant, standing by the kerb, was capable of having come into the view of the defendant some 300 metres away on the road; but she would have had no particular reason at that stage to notice or to concentrate on him or his companion.

The judge also found as a fact that the claimant himself saw, and was looking at, at some stages, the defendant's car. As the judge found, as the defendant drew near and passed the traffic islands she would have seen the man (of course, the claimant) standing by the side of the road and would have noticed that he had made no attempt to cross, but apparently was waiting to cross. The judge made reference to the question of whether or not the defendant would have seen the claimant rocking, as Mrs Benson had described it, and possibly also bending forward. The judge made findings with regard to that at paragraphs 46 and 47 of his judgment, and then again as to what the defendant actually saw in paragraph 46(12) of his judgment, coming back to the matter in paragraph 54 of his judgment.

The judge found that by this time the defendant would have been some 7 to 8 seconds away from the point at which in the event the collision occurred. As the judge found, she was at this time traveling at around 40 miles an hour, she having reduced her speed from 50 miles per hour as she approached the traffic islands, knowing also that the 40 mile per hour speed limit was coming up with a roundabout beyond it.

The judge found that the defendant in her car was travelling in the centre of the lane at all material times: that is to say, she was about one metre from the rumble strip and a further one metre from the kerb.

The defendant, as the judge found, did not at this stage, when she saw the man standing on the edge of the kerb, reduce her speed further below around 40 miles per hour, nor did she steer her car towards the centre of the road. When her car was no more than about 27 metres from the claimant he moved out into the road. It was far too late, as the judge found, for her at that speed to react to the danger or to take emergency braking or steering action. The judge in fact found the claimant had "half stumbled into the road at a jogging type of speed". The claimant was struck by the car in the road some 2.5 metres from the kerb edge.

The judge went on further to find as a fact that, while the defendant did see the claimant standing by the road as she passed the traffic islands, she did not consider him to be any risk and so she paid no particular attention to him because to her he would simply have been someone waiting to cross. As the judge also rightly said, the defendant was not simply needing to concentrate on what was going on at the edge of the road, she also had to concentrate on her driving and on anything that might appear coming the other way. At all events, she did not reduce her speed, take her foot off the accelerator or steer to the centre. The judge found that the claimant's stepping out in front of her "came as a complete surprise to her".

In assessing whether a breach of duty had been established on the part of the defendant, the judge in the course of his judgment reviewed certain legal authorities which had been cited to him. He also considered aspects of the Highway Code relating to risks from pedestrians stepping out unexpectedly into a street.

The judge found that the claimant was not, of course, a child or a vulnerable pedestrian, and that the defendant herself had no reason, unlike Mrs Benson, to think that he was drunk. The judge expressly found that the defendant had no reason to believe that the man standing at the edge of the road was likely for some reason to behave in an irrational way. The judge found that there was nothing particularly unusual in a pedestrian seeking to cross the road at that point. Further, the defendant would have seen the claimant looking directly at her car and there was no reason for her to think that he would do anything unnecessarily foolish. As the judge put it in paragraph 58 of his judgment:

The judge's conclusions, based on his primary findings, are set out in his judgment at paragraphs 59 to 62:

“59.

In the end, it is a matter of judgment. I consider that the majority of cautious drivers would, perfectly reasonably, have taken the view that there was nothing so unusual in the claimant’s conduct as to make them think that there was a real risk that he would suddenly step into the road when it was obviously dangerous to do so, especially in circumstances where: (i) they would reasonably have assumed that he was alert to their presence; (ii) they would have no reason to think that his powers of observation or judgment were adversely affected by drinking or some other cause. Although they might have been aware of some risk that he might lose his balance on the kerbside and stumble forward into the road, since there was already a cushion of some 2m between the kerbside and their car’s nearside, there would have been no obvious need to increase that cushion. This is a very different case to that where the kerb is right up against the road, so that there is very little margin for error.

60.

I accept that some cautious drivers might well have eased their foot off the accelerator as they came closer to the claimant, but I do not consider that it would have been negligent not to do so. If I am wrong about that I do not consider, for reasons I shall explain that this would have made any difference to the outcome.

62.

I am quite satisfied that a reasonably careful driver would not have considered it necessary either to brake, or to steer towards the centre of the road, still less to do both of those things. I consider that for me to hold that a reasonably careful driver would consciously have decided to slow down and to steer to the offside as a safety precaution would be a decision based on hindsight given what happened, rather than on the information available to a reasonably careful person in such a position at the time. Accordingly, whilst I have every sympathy for the claimant given the appallingly serious consequences of this collision, I am unable to find that the defendant was negligent as alleged.”

Mr Willems' short submission on this appeal is that the judge's overall conclusion was simply wrong. He submits that the judge should have found that once the defendant had seen the claimant on the edge of the kerb, and perhaps also seeing him shouting back towards his friend and rocking slightly and perhaps bending at least once, she should have appreciated that there was a risk of something untoward happening and should have taken precautionary measures, such as taking her foot off the accelerator and/or steering across to the centre of the road, both of which procedures could have been done without any difficulty at all. He further submits that had the defendant reduced her speed to around 35 miles per hour and moved to the centre then the accident would have been avoided, or at least serious head injury would not have resulted. Shortly put, what Mr Willems is saying is that, given what was seen and should have been seen by the defendant, she should have anticipated that something might happen.

Mr Hunter QC on behalf of the respondent in essence submits that the judge's primary findings of fact are unimpeachable and so are his conclusions based on those primary findings of fact. He submits that the judgment reached by the judge is an entirely proper one and there simply is no basis for an appellate court interfering.

A number of authorities were placed in a bundle before us, but neither party has thought it necessary formally to cite them to us. This court has considered them, but in my own view really they do not greatly assist; it is of course basic that all these cases of this kind have to be decided on their own facts.

So far as the ultimate disposal of this appeal on the question of liability is concerned, I think I can state in my own conclusions and reasoning very shortly: because I am in no doubt that the judge reached a conclusion on this question of liability which was properly open to him, having regard to his primary findings of fact, and that his reasoning as fully and clearly set out is entirely proper reasoning.

With all respect, a number of Mr Willems' criticisms of the judge seem in part to be based on the proposition that the defendant in her car could have seen and heard and had been as concerned as much as Mrs Benson; but of course Mrs Benson was in that position because she had been keeping the claimant under observation for some time. As the judge made clear on several occasions, that is not the position which the defendant found herself in; she of course was in her car. In my view the judge's findings of fact were fully open to him; indeed the claimant has not sought to challenge any of his primary findings of fact. The judge expressly found on his findings that the defendant had no reason to think that the claimant would, or might, behave as he did when her car was clearly visible to him. As the judge expressly found, the risk of the claimant moving out into the road would properly have been considered by a reasonable driver as extremely remote. Mr Willems complained that the judge had failed to give sufficient regard to the evidence about the claimant rocking or at one stage bending; but in fact, as is clear from his judgment as above cited, the judge fully factored that into account to the extent that it was important.

Given the judge's findings, his conclusions, as a matter of judgment, seem to me to be entirely justified. His findings, particularly those set out at paragraphs 59 and 62 as set out above, in my view cannot be faulted.

Mr Willems stressed that it would have been very easy indeed for the defendant, as she approached this man on the kerb, either to have taken her foot off the accelerator or to have steered towards the centre of the road or both. No doubt it would have been relatively easy. But, as the judge rightly said, the legal test is not a question of the counsel of perfection using hindsight. Of course it is not, and drivers are not required to give absolute guarantees of safety towards pedestrians. The yardstick is by reference to reasonable care. As the judge found, there was nothing here to require the defendant as a reasonably careful driver to act in any way other than a way in which she did act given the situation in which she found herself at the time.

In such circumstances, whilst of course anyone would have the greatest sympathy for the claimant in the outcome of this tragic accident, there is simply no basis in my view of interfering with this judgment. The judge's conclusion was justified for the reasons that he gave. Since his reasoning is in my view watertight, there is no benefit in amplifying it in other language at this stage.

That conclusion, if my Lords agree with it, means that it is not necessary to express any conclusion on the issue of causation. I would simply record that the judge went into the matter of causation very fully indeed, fully assessing the evidence, and on that issue also reached conclusions adverse to the claimant.

We have not heard oral argument on that, although we have had the benefit of seeing the detailed written arguments of both sides. I think I perhaps might indicate my own preliminary view that on that issue the claimant might have had great obstacles as well; but, not having heard oral argument, I would for myself express no final view on that.

In the result, since I can see no fault or error in the judgment under appeal on the question of liability, I would for my part dismiss this appeal.

I agree.

I also agree.