Ahanonu v South East London & Kent Bus Company Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Gage,Lord Justice Rimer,Lord Justice Lawrence Collins,Mrs Justice Black,Lord Justice Laws |
| Judgment Date | 23 January 2008 |
| Neutral Citation | [2008] EWCA Civ 274,[2007] EWCA Civ 1125 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2007/1562,Case No: (1) B3/2007/1562 |
| Date | 23 January 2008 |
[2007] EWCA Civ 1125
Lord Justice Gage and
Lord Justice Rimer
Case No: B3/2007/1562
B3/2007/1825
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON CIVIL JUSTICE CENTRE
(HIS HONOUR JUDGE PETER LATHAM)
Royal Courts of Justice
Strand, London, WC2A 2LL
Colin Mendoza (instructed by Messrs David Hurley Associates) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED
Judgement
This is an application for permission to appeal, in the first instance, a judgment of HHJ Latham on liability, the judgment being delivered on 24 May 20007, and in the second instance, in respect of an order for costs, which he made following the judgment on liability.
In the judgment on liability, the judge found that the defendants were negligent and that the claimant was guilty of contributory negligence in respect of a road traffic accident which had caused injuries to the claimant. The trial was solely on liability. He apportioned liability between the claimant and the defendant at 50 percent for each. He ordered the defendant to pay 50 percent of the claimant's costs. The defendant seeks permission to appeal the finding of negligence and the order for costs.
The claim arises out of a collision between the claimant and a bus owned by the defendant and driven by Mr Voltier. How the accident happened was the subject of a dispute involving the claimant Mr Voltier and a Mr Page. Mr Page was the driver of a bus belonging to another bus company which was travelling behind Mr Voltier's bus before the accident. There is no dispute that the accident happened on an exit road from Peckham bus garage. The judge found, accepting Mr Page's evidence and rejecting the claimant's evidence, that the claimant had crossed a pedestrian-crossing behind Mr Voltier's bus and walked diagonally across the road, behind the bus to a position by a bollard in the road, close to the kerb and almost on the apex of the corner. There, as the bus executed a sharp left turn round the corner, it squashed the claimant between a bollard and the side of the road. The judge found Mr Voltier negligent because he failed to keep a proper look out for pedestrians who might be jay-walking as he made his left turn. He found the claimant negligent for jay-walking and ignoring warning signs clearly placed on railings, which guard pedestrians from walking onto the carriageway, preventing them from walking on the road. The grounds of appeal, shortly put, are that the judge was wrong to find Mr Voltier negligent in the circumstances of the accident; alternatively, if he was negligent, wrong to apportion liability 50 percent to him, 50 percent to the claimant.
In my judgment, permission should be granted. Allowing for the fact that this court seldom interferes with the decision of a judge at first instance on apportionment, and further allowing for the causative potency of a large bus by comparison with the negligence of a pedestrian, my view is that the grounds of appeal are arguable and that there is a real prospect of success. On the judge's finding, the claimant came from behind the bus and proceeded up the nearside of the bus to the point on the apex of the corner, where the railings ought to have prevented a pedestrian from stepping out into the path of the bus. It was not a case of the bus passing the claimant as she was on the carriageway or at the kerbside. At that point, the driver Mr Voltier's attention would be bound to be concentrated on the traffic in front of him. The judge stated that it is well-known to bus drivers that pedestrians walk on carriageways outside railings, despite warning signs; but in my judgment it is arguable that it is one thing to be aware of this hazard in general terms, but another to have to anticipate that a pedestrian would walk from behind a bus into a position of obvious danger. It seems to me at least arguable that the claimant was the author of her own misfortune; alternatively, her negligence, whilst far less significant than that of Mr Voltier. Accordingly, for my part, I would give permission in respect of the finding of liability.
As far as the costs are concerned, initially the defendant made a part 36 offer of 70 percent to 30 percent liability in favour of the claimant. This was not accepted. The claimant made a counter-offer which was also not accepted by the defendants. The defendant then traced the witness Mr Page; as a result, it amended its defence to put Mr Page's version of events. At the hearing of the application to amend the defence, the claimant sought permission to accept the part 36 offer. The judge refused that application.
The judge, when dealing with costs, made an order that the defendant pay 50 percent of the costs. He set out in his judgment five factors which he took into account in making his order. It is unnecessary for me to recite those five factors. It seems to me that, although this was a decision made in the exercise of his discretion, it is, to say the least, arguable that the part 36 offer, which was not beaten by the claimant, arguably ought to have been much greater factor, if not a determinative factor, in the order for costs. In the circumstances, for my part I would grant permission in respect of the appeal in respect of the order for costs.
I agree
Order: Application granted
[2008] EWCA Civ 274
Lord Justice Laws
Lord Justice Lawrence Collins
Mrs Justice Black
Case No: (1) B3/2007/1562
(2) B3/2007/0825
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON CIVIC JUSTICE CENTRE
(1) & (2): HIS HONOUR JUDGE PETER LATHAM
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr C Mendoza (instructed by Messrs David Hurley Associates) appeared on behalf of the Appellants.
Mr K Walmsley (instructed by Law Solicitors) appeared on behalf of the Respondent.
On 7 December 2002 at Peckham Bus Station the claimant, Miss Ahanonu, an undergraduate then aged about 18, was squashed between the defendants' bus, a double-decker and a bollard on the carriageway from Peckham bus station to Peckham High Street. The accident took place at the exit road from the bus station where there is a right angle corner turning left for buses leaving the bus station with the carriageway protected by railings.
The bus driver was Mr Terence Votier. Mr Votier was close to retirement and it seems had never had any sort of serious accident before. On 24 May 2007 HHJ Latham, following a two-day trial on liability and contributory negligence heard on 11 and 12 April 2007, held that the driver had been negligent but the damages should be assessed on the basis of the claimant having been 50 percent contributorily negligent.
This is an appeal by the defendants with the permission of this court. Their primary submission is that the claimant's claim should have been dismissed in its entirety. In the alternative they submit that the deduction for contributory negligence should be 80 percent.
Originally liability was admitted and directions were given in relation to trial only on contributory negligence and quantum, but the defendants were given permission to resile from their admission of liability shortly before the trial.
The locus of the accident was a crucial point in this case. In order to leave the bus station the driver goes along an access road towards Peckham High Street. In order to do this he goes over a pedestrian crossing inside the bus station. After the pedestrian crossing the driver then has to negotiate after about 15 metres a left-hand, right-angled bend about 21 metres before the junction with Peckham High Street. This is a very tight bend, given that buses will also be coming to the bus station from the opposite direction.
There is a metal bollard just before the apex of the left-hand corner. That is where the accident took place. There are railings all the way from the pedestrian crossing on the near side of the road right through to the junction with Peckham High Street and there are no gaps in the railings. The bollard at the corner has extensive scrape marks on it and the kerbstone at the apex of the corner is worn away, which shows that the buses normally or very frequently go very close to the kerb. There are warning signs attached to the railings which say: “Warning. Buses turning. Pedestrians must keep to the footways.”
The claimant's case was that on the day of the accident she had been to Peckham library to do some studies where she needed a book. On leaving the library she walked...
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