Sabir v Osei-Kwabena

The short point on this appeal is whether the trial judge, His Honour Judge William Davis QC, the Recorder of Birmingham, then sitting as a Judge of the Queen’s Bench Division, has erred in his assessment of the extent to which the Respondent/Claimant’s damages should be reduced to reflect her share in the responsibility for the grievous injury which she sustained when struck by a motorcar driven by the Appellant/Defendant. The trial judge found that her share in the responsibility for the damage was 25%. On this appeal the Appellant/Defendant contends that the judge should have found her share in the responsibility to be 50% or something close thereto.

As recently as February of this year the Supreme Court reminded us that in this field there is rarely a demonstrably correct answer. Differing views should be respected within the limits of reasonable disagreement. So unless the judge has taken into account some irrelevant consideration, or failed to take into account a relevant consideration, we should only interfere with the apportionment made by the judge below if it was not one which was reasonably open to him. See Jackson v Murray [2015] UKSC 5 SC per Lord Reed at paragraphs 27, 28 and 35. Sometimes the courts have expressed the same sentiment by suggesting that an appellate court should only interfere with such an evaluation exercise where the outcome appears to be “plainly wrong”, the expression in fact used by Lord Hodge in the same case at paragraph 57. The litigation history of Jackson v Murray does not make happy reading. The facts of that case are shortly summarised by Lord Reed at paragraph 1 of his judgment:-

“A school minibus draws up on a country road on a winter's evening. Two children get off. One of the children tries to cross the road. She steps out from behind the minibus, into the path of an oncoming car. The driver is driving too fast: he has seen the bus, but has made no allowance for the possibility that a child might attempt to cross in front of him. He is not keeping a proper look-out, and does not see her, but he is going too fast to have stopped in time even if he had seen her. His car hits the child, causing her to sustain severe injuries. If he had been driving at a reasonable speed, and had been keeping a proper look-out, he would not have hit her.”

The trial judge found that the accident was caused by the driver’s negligence but assessed the child’s contributory negligence at 90% and reduced her award of damages accordingly. On appeal the Inner House reduced this assessment to 70%. On appeal to the Supreme Court, the assessment was reduced still further, to 50%, but only by a majority of three members of the court to two. The minority would have left undisturbed the assessment of the Inner House, although they for their part might have concluded that the child was in fact two thirds responsible. The difference between 50% and 66.6% is within the ample scope for reasonable disagreement.

Mr William Hoskins for the Appellant/Defendant very realistically recognised that in order to succeed on this appeal he must persuade us that the correct assessment of relative responsibility is in the range of 40/60 in favour of the Respondent/Claimant, or better still from the Defendant’s point of view. I suspect that even a conclusion on our part that the Claimant should have been found 40% responsible might not be enough to warrant interference, although Mr Hoskins’ submission was in fact that contributory negligence should here have been assessed as 50% or close thereto and that the judge’s assessment was plainly wrong.

The facts of the present case may be stated very shortly. I take them from the judge’s judgment which is a model of clarity and economic exposition.

At about 12.45pm on Tuesday 27 April 2010 the Claimant was struck by a car driven by the Defendant. She was on foot and crossing Green Lane, Ilford, a busy suburban road lined with shops. The Defendant was driving a Ford Focus on Green Lane, approaching the collision point from the Claimant’s right hand side. The Claimant was 30 years old, slightly built, less than 5ft tall and 5 months pregnant. She broke several bones, suffered significant abdominal injuries, and subsequently miscarried the child. Most significantly however she suffered what the medical evidence described as “the worst sort of traumatic brain injury” and she has no recall of the accident.

The Claimant was crossing Green Lane immediately to the rear of a parked Saab motorcar which had stopped at a point where double yellow lines give way to single yellow lines. She was some 19 metres beyond a traffic light controlled junction where there were pedestrian crossing facilities. She had just alighted from that car and moved to the rear of it before stepping out into the road in order to cross. The judge made no finding that she stopped at the kerbside between alighting from the vehicle and stepping into the road. She was struck by the Defendant’s car when she had walked 3.6/3.7 metres into the carriageway, from the Defendant’s nearside.

The judge’s detailed findings were as follows:-

The judge thus rejected as “untenable” the argument urged on the Defendant’s behalf that he was confronted with a sudden emergency and that there was no time for him to have done anything whether or not he had seen the Claimant.

Section 1 (1) of the Law Reform (Contributory Negligence) Act 1945 provides:-

“Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage”

Although the judge did not in terms refer to that sub-section he directed himself correctly by reference to the authorities as they then stood, which did not include Jackson v Murray. However whilst that case contains an illuminating analysis of the authorities and in particular of the proper approach to be taken by an appellate court, it adds nothing which was not already part of the learning on this topic.

The judge expressed his conclusion as follows:-

“The causal potency of the Defendant’s failure to pay proper attention to the road ahead as he drove his car at about 30 mph along a busy suburban road was very substantial given that he was in a car and he ought to have foreseen the likelihood of pedestrians being on the road. His blameworthiness in not seeing the Claimant when she was there to be seen likewise was substantial. Had he kept a proper lookout and seen the Claimant when he should have done, avoiding a collision would have involved no more than the Defendant taking his foot off the accelerator. The Claimant contributed to the collision because she misjudged the approach of the Defendant’s car and because she might have been able to quicken her step so as to avoid the collision had she been paying close attention to the car’s approach. I am satisfied that the contribution of the Claimant to the collision and to the consequent damage was vey much less than that of the Defendant. I conclude that primary liability lies with the Defendant and that the Claimant’s contribution is to be assessed at 25%.”

Mr Hoskins submits that the judge substantially understated the extent of the Claimant’s responsibility for the damage. He submits that there should have been a clear recognition that it was a substantial want of care which led the Claimant to attempt to cross the road at this point at all. He also submits that it was more negligent of the Claimant to have looked to see whether there was oncoming traffic and then decided to cross than it would have been simply to enter the carriageway without looking at all. The Claimant had, he submits, made a considered but flawed decision. She took a deliberate risk. Whilst not a case of running from which deliberate risk taking may be inferred, nonetheless observing a car travelling at 30 miles per hour 35 metres distant and electing nonetheless to cross the road in its path is conduct from which deliberate risk taking can be inferred. The judge should have regarded this as a case where the Claimant pedestrian moved suddenly into the path of an oncoming vehicle. The Defendant had very little time within which to take avoiding action. If he failed to become aware of her presence within the road for about one second after she had stepped into it, a collision was inevitable unless she altered her course or speeded up. The judge gave insufficient weight to the Claimant’s responsibility for creating a situation in which the time available to the Defendant in which to see her and act was so short.

Mr Hoskins also submits that the result is out of line with the approach in the decided cases. Thus in Clifford v Drymond [1976] RTR 134 a pedestrian who began to cross a zebra crossing when an oncoming vehicle travelling at 26-30mph was between 75 and 90ft away (22.86-27.43 metres) was held 20% contributorily negligent for failing to keep the oncoming car under observation. Mr Hoskins submitted to us, as he had submitted to the judge, that the reduction must surely have been greater had not the pedestrian been on a zebra crossing. In Lunt v Khelifa [2002] EWCA Civ 801 a pedestrian stepped onto the carriageway at a recognised crossing point at which the lights were not working. A car was approaching at about 25mph, approximately 20-25 yards away when the pedestrian left the kerb. After taking approximately two paces the pedestrian was struck. The motorist did not see him at all before the impact. The Court of Appeal did not interfere with an assessment that the pedestrian was one third contributorily negligent, even though it plainly thought the assessment generous to the pedestrian. Latham LJ said, at paragraph 20:-

“[The pedestrian] was the one who created the dangerous situation by stepping out as he did into the carriageway when the Respondent’s vehicle was so close. But nonetheless, bearing in mind the fact that this court has consistently imposed on the drivers of cars a high burden to reflect the fact that a car is potentially a dangerous weapon, I find it difficult to see how I could properly categorise the judge’s apportionment in this case as plainly wrong.”

Belka v Prosperini [2011] EWCA Civ 623 concerned an accident on a dual carriageway by-pass adjacent to a roundabout. The claimant and a friend were attempting to cross at an unregulated crossing point at which pedestrians had no precedence. The claimant and his friend had crossed two lanes of the carriageway and reached the refuge which separated the four lanes. At that point, whilst his friend decided to wait for an oncoming taxi to pass, the claimant decided to run across the road in front of the taxi. He was found deliberately to have taken a risk. The taxi driver emerging from the roundabout should have seen the two men on the refuge from a distance of about 30 metres. The taxi driver said that he saw only one man, the friend, on the refuge at a distance of about 25-30 metres. He first saw the claimant at the last moment in a position on the offside front of his car. He braked and swerved to the right but was unable to avoid a collision. The judge found that the pedestrian took a risk setting off when, unless the driver took some avoiding action, an accident was likely. The judge also found that even on the driver’s own account of seeing only the friend on the refuge he should have taken his foot off the accelerator as a precaution against any untoward movement by the pedestrian. The judge concluded that “with a better look out, and a slight easing of speed I am satisfied that the accident would have been avoided” because the appellant would then have crossed the road in front of the taxi. The judge held that the pedestrian was two thirds to blame and the driver one third to blame. The Court of Appeal upheld this assessment. Hooper LJ said, at paragraph 19:-

“In my view this is a case where, on the judge’s findings, the pedestrian “has suddenly moved into the path of an oncoming vehicle”. Or, to use the words of Lord Reid, this is a case where the Appellant’s conduct in deliberately taking the risk of trying to cross the road in front of the taxi contributed more immediately to the accident than anything that the Respondent did or failed to do.”

The reference to Lord Reid is to his speech in Stapley v Gypsum Mines [1953] AC 663 at 681.

As noted by Lord Reed in Jackson at paragraph 26, and as the judge reminded himself in this case, there are two aspects to apportioning liability between the claimant and defendant, namely the respective causative potency of what they have done, and their respective blameworthiness. So far as concerns the former, because a car can usually do much more damage to a person than a person can do to a car, the court imposes upon drivers what Latham LJ in Lunt described as a “high burden.” Hale LJ thought, in Eagle v Chambers [2004] RTR 9, at paragraph 15, that this potential “destructive disparity” between the parties can be taken into account as an aspect of blameworthiness. Lord Reed in Jackson at paragraph 40 agreed that the potentially dangerous nature of a car being driven at speed should be taken into account when assessing blameworthiness, but observed that “the overall assessment of responsibility should not be affected by the heading under which that factor is taken into account.” Lord Hodge seems to have thought, at paragraph 50, that this factor could come into the equation under either rubric, moral blameworthiness or causative potency. For my part, bearing in mind that the 1945 Act speaks of responsibility for the damage rather than responsibility for the accident, I am inclined to think that it is because of the destructive potential of the car driven even at moderate speed that it is “rare indeed for a pedestrian to be found more responsible than a driver unless the pedestrian has suddenly moved into the path of an oncoming vehicle” – see per Hale LJ in Eagle v Chambers at paragraph 16. The proper approach, I would suggest, is that the destructive capacity of a driven car comes into both aspects of the evaluation. Driving a car at even a moderate speed without keeping a proper lookout in a situation in which pedestrians can reasonably be expected to be present in the carriageway, as in Jackson because of the presence of the stationary minibus and here because of the nature of the suburban shop-lined road – points to a considerable degree of blameworthiness.

Lord Hodge in Jackson observed, at paragraph 50, that each case must depend upon its particular facts and that a court gets little assistance from detailed comparisons of outcomes in other cases. But as he also pointed out, case law points up general principles. That which Mr Hoskins submits is relevant here is the general principle that a pedestrian attracts a greater share of the responsibility when he suddenly steps directly into the path of an oncoming car. Indeed at one point in his argument he suggested that the real point in this appeal is to determine the appropriate discount for a pedestrian who takes a deliberate risk.

I do not agree that the point at issue can be stated so baldly, but in any event I do not accept the premise that the Claimant here took a deliberate risk. In one sense of course crossing the road in a town or suburban environment always involves an element of deliberate risk taking, unless there is no vehicle in sight and the view is unobstructed for a suitable distance. Even then there is always the risk of slipping or stumbling, or of a vehicle emerging from a side road, and matters of that sort. Deliberate risk taking, in this context, is in my view conduct such as that of the claimant in Belka v Prosperini, which the judge there characterised as setting off when, unless the driver took some avoiding action, an accident was likely. Moreover it often involves running – a recognition that the orthodox method of crossing the road cannot safely be achieved without waiting, and conduct carrying with it its own inherent risk of misjudgement of running speed and the obviously heightened risk of missing one’s footing. The judge here found that the Claimant made a slight misjudgement, not that she had deliberately set out upon an errand which was obviously unsafe unless she could cross at more than her normal walking pace. That finding is not challenged, and it is perhaps underscored by the circumstance that the Claimant apparently made no effort to increase her normal sedate walking pace. The judge expressly rejected the Defendant’s evidence that the Claimant was in a bit of a hurry. The Claimant’s misjudgement plainly contributed to the damage, as did her failure to pay close attention to the car’s approach, which could have led her to alter course or to speed up, and each is to a degree blameworthy. But it is blameworthy in that it betokens a want of regard for her own interests – see per Lord Reed in Jackson at paragraph 27. The Claimant did not in any real sense place the Defendant in danger. The Defendant ought reasonably to have seen her in such time as was ample to enable him to take his foot off the accelerator, which would in itself without braking have avoided the collision. It is not a case of a sudden emergence into the road by a pedestrian at the last moment creating a situation of urgency. Of course times such as 1.5 seconds and 1.1 seconds are short. But the former is the average perception response time reasonably to be expected of the Defendant. He should not have failed to see her for as long as 1.1 seconds. She was in his direct field of vision.

The causal potency of the Defendant’s conduct is much greater than that of the Claimant, not least because he was driving a car whereas she was a pedestrian but also because she in no sense created a situation of urgency. The relative blameworthiness is stark. The Claimant slightly misjudged her own safety. She did not put the Defendant at risk. The Defendant by contrast failed to keep a proper lookout in circumstances where he could expect pedestrians to attempt to cross the road to reach shops on the other side or simply to be in the road in connection with parked vehicles and where he was driving at the maximum speed permitted. He did not just fail to see the Claimant and to react within such timescale as was reasonably to be expected, he failed to see her at all over a period significantly, in the context, longer than that benchmark.

As to the decided cases, I see the force of the argument that the fault on the part of the Claimant here appears greater than that of the claimant in Clifford v Drymond, who was on a zebra crossing. I tend to agree with the submission of Mr Christopher Melton QC for the Respondent that that case would not be decided in the same way today, and I note that Stephenson LJ had grave doubts whether “this nervous young woman was guilty of more than an error of judgement which falls short of a proved failure to take reasonable care for her own safety” – see at page 139. In Lunt the vehicle was somewhat closer than in this case, albeit travelling marginally more slowly. The claimant was struck after taking two paces into the road and the court treated it as a case where the pedestrian simply walked straight out in front of the car without taking account of the possibility of an approaching vehicle. I should mention in that connection that I cannot agree with Mr Hoskins’ submission that a pedestrian who acts in that fashion is less blameworthy than one who makes a narrow misjudgement which is not in the category of deliberate risk taking. Belka is just such a case of deliberate risk taking, and moreover the dynamic of the by-pass is not the same as that of the busy suburban shop-lined road where pedestrians abound. McLuskey v Wallace 1998 SC 711 was not cited to us but is discussed by Lord Reed in Jackson at paragraph 40 of his judgment. He characterised it as a case in which a driver ploughs into a pedestrian who has been careless of her own safety but has been in his line of vision for long enough for him easily to have avoided her. That is just this case. In McLuskey the contributory negligence of the child pedestrian was assessed at 20%. Jackson itself is a case where the claimant emerged into the road from behind the minibus at a time when, given the speed at which the oncoming car was travelling, it was impossible for the driver to avoid a collision. None of these cases is directly comparable. I do not however accept that the judge’s assessment here is demonstrably out of line with the approach taken in those cases.

In my judgment both the causal potency of the Defendant’s conduct and its blameworthiness were very substantially greater than that of the Claimant. It is possible to say of this accident that, whilst the Claimant was unwise to attempt to cross the road when and in the manner that she did, a collision should nonetheless not have happened because it was so relatively easy for the Defendant to avoid it. The judge’s assessment of how, justly and equitably, the Claimant’s damages should be reduced having regard to her share in the responsibility for the damage was in my view squarely within the range of reasonable decision making. It follows that we should not interfere with it. As already discussed there is of course no demonstrably correct outcome, but for what it is worth I do not think that my own assessment would have been markedly different, if at all.

I would dismiss the appeal.

I agree.

I also agree.