Andrews v Freeborough

JurisdictionEngland & Wales
JudgeLORD JUSTICE WILLMER,LORD JUSTICE DAVIES,LORD JUSTICE WINN
Judgment Date09 May 1966
Judgment citation (vLex)[1966] EWCA Civ J0509-1
Date09 May 1966
CourtCourt of Appeal
Between:
Stanley Andrews (suing as the personal representative of the Estate of Carolyn Emily Andrews deceased)
Plaintiff
and
Lavinia Freeborough
Defendant

[1966] EWCA Civ J0509-1

Before:

Lord Justice Willmer,

Lord Justice Davies and

Lord Justice Winn.

In The Supreme Court of Judicature

Court of Appeal

Appeal from Order of Lloyd-Jones at Liverpool Assizes dated 8th Nov. 1965.

Mr CECIL C. M. CLOTHIER, Q. C., and Mr NORMAN W. M. SELLERS (instructed by Messrs Sharpe, Pritchard & Co., Agents for Messrs Rutherfords, Liverpool) appeared on behalf of the Appellant (Defendant).

Mr FRANCIS J. NANCE (instructed by Messrs Pritchard, Englefield & Co., Agents for Messrs Lamb, Goldsmith & Howard, Liverpool) appeared on behalf of the Respondent (Plaintiff).

LORD JUSTICE WILLMER
1

The plaintiff, who was the father of a deceased child, brought this action as administrator of the child's estate under the provisions of the Law Reform (Miscellaneous, Provisions) Act 1934. He claimed damages for personal injuries, which resulted in the death of the child, and which were sustained in consequence of her being struck by the defendant's motor car.

2

The action was tried by Mr Justice Lloyd-Jones, who by his judgment of the 8th November 1965 found in front of the plaintiff's claim. He found that the accident was caused by the negligence of the defendant, and that there was no contributory negligence on the part of the deceased child. He assessed the damages at £2.531.1.3.of which £31. 1s.3d. Represented agreed special damage. The general damages of £ 2,500 were made up of £ 500 in respect of loss of expectation of life and £2,000 in respect of the actual injuries and the consequent loss of amenities. The defendant now appeals both against the finding of liability and against the assessment of damages. There is a cross-appeal by the plaintiff against the award of damages.

3

It will be convenient to deal first with the issue of liability. Let me say at once that the finding of negligence against the defendant is not now challenged. What has been contended is that the deceased child should have been found guilty of contributory negligence and that the damages recoverable should have been proportionately reduced.

4

The accident happened about 1.15 p.m. on the 5th February 1962 in Oak hill Road, Liverpool. The deceased child was a girl very nearly eight years old at the time of the accident. She was on her way to afternoon school with her brother, a boy just over 4 years old. The two children came from their house in Baden Road, turned right into Oak hill Road and walked along the sidewalk on the north side of that road. It was common ground that at some point they would have to cross Oak hill Road in order to get to school. They reached a point about opposite the street lamp which is marked on the plan at the eastern end of the shopping parade. There was evidence from several witnesses that the children were seen standing on the edge of the kerb, apparently waiting to cross the road. Oak hill Road is said to be 24 feet wide. On the south side, opposite to where the children were standing, and in front of the shopping parade, a number of vans or lorries were parked, reducing pro tanto the width of the road available for passing traffic. There was a taxicab proceeding westwards whose driver was called as a witness. He said that he had to pull out into the centre of the road in order to pass the parked vehicles, leaving a clear passage about 8 feet wide on the north side of the road.

5

At that moment the defendant was proceeding eastwards along Oakhlll Road driving her Morris 1000 car. The defendant is a medical practitioner and was on her way to visit a patient. She said, however, that it was not an urgent call and that she was not hurrying. She said she knew that at this time and in this place a she must expect to encounter children on their way to afternoon school. For that reason she was traveling at only 15-20 miles per hour. and because of the presence of the taxicab was keeping close over to the kerb on the north side of the road.

6

No witness was in a position to see exactly what happened.

7

But for some reason the girl was struck by the defendant's car in such a way that her head came into contact with and shattered the defendant's windscreen. In addition to the damage to the windscreen it was found after the accident that there was a scratch mark on top of the nearside front wing, which might have been caused by contact with a button on the child's clothing. There was no damage to the front of the defendant's car. As a result of the accident the child sustained a severe brain injury and lost consciousness at once. She was taken to hospital and remained there until the 29th January 1963 when she died without ever having recovered consciousness.

8

The deceased child was said to be a bright little girl, well aware of the hazards of traffic. Her parents thought her sufficiently reliable to be allowed to take her younger brother unaccompanied to school, which she had been in the habit of doing for some weeks before the accident. It was the plaintiff's case that the child must have been struck while standing on the kerb due to the defendant's car being driven too close to the kerb. The defendant's case, on the other hand, was that the child stepped off into the road just as her car was passing, stepping actually into the side of the car. It was to this that she attributed the fact that there was no damage to the front of the car.

9

The defendant said in evidence that she saw the children standing on the kerb when she was at a distance of about 40 yards. She said that she thought they were waiting to cross, but that shenever saw them look in her direction. Yet she did not think it necessary to sound her horn or to reduce her speed. She insisted in evidence that she saw the deceased child step off the kerb into the side of her car. The learned judge accepted that she was an honest witness doing her best to tell the truth. But he concluded that this part of her evidence was unacceptable, and expressed the view that she was unconsciously reconstructing what she thought must have happened. This conclusion was largely based on the fact that the defendant had said nothing about the child stepping off the kerb either when giving her original statement to the police on the day of the accident, or when giving evidence at the Coroner's inquest a year later.

10

In the circumstances the learned judge declined to find that the child had stepped off the kerb. He found that in some way, while standing on the kerb, she was caught up, or swept up, by the defendant's car as it passed. This necessarily involved that the defendant's car must have been driven too close to the kerb. As I read his judgment, the learned judge thought that the defendant was to blame (a) for not sounding her horn, (b) for failing to reduce her speed, and if necessary to stop on seeing the children, and (c) for driving too close to the kerb. He declined to find any contributory negligence on the part of the deceased child, even on the assumption that she was old enough to be capable of negligence.

11

On this appeal, as I have already said, it has not been contended that the defendant was entirely free from blame. But we have been invited to say that the deceased child was guilty of contributory negligence so that the plaintiff should recover only a proportion of the damages. It has been submitted that we ought to set aside the learned judge's finding as to how the accident happened, and substitute a finding that the deceased child did step off the kerb, as the defendant alleged. It has been admitted that, even if that were so, the defendant would have to be found partly to blame for the accident for not sounding her horn. It is indeed tempting to accept the invitation put forward by counsel for the defendant since the accident could so easily be explained on thebasis that the child stepped off the kerb into the road. I confess that I find It quite difficult to appreciate just how the accident happened if the child remained throughout standing on the kerb. But the learned judge was fully alive to the difficulties of the plaintiff's case. He had the advantage, denied to us, of seeing and hearing the witnesses, particularly the defendant herself. He came to the conclusion that the plaintiff's case, with all its difficulties, should be accepted. His finding that the child did not step off the kerb was a finding of primary fact, based largely on his view of the quality of the evidence which he heard. In my judgment it is not a finding with which this court could properly interfere. That being so, I find myself unable to say that any case of contributory negligence on the part of the deceased child has been made out. The defendant was in my view rightly held liable for the whole of the damages sustained by the child, whatever they may be.

12

I would only add, on this aspect of the case, that if I thought that we could properly find that this child did step off the kerb into the road, I should have needed a good deal of persuasion before imputing contributory negligence to the child having regard to her tender age. But in the view which I hold the point does not arise, and I prefer to express no concluded opinion upon it.

13

I turn now to consider the difficult questions which have been raised with regard to the quantum of damages recoverable. No question arises as to the special damage of £ 31.ls.3d. For the defendant, however, it has been contended that the award of 62,000 in respect of the injuries sustained and the consequent loss of amenities was too high having regard to the fact that the deceased child was completely unconscious from the time of the accident until her death. On behalf of the plaintiff, on the other hand, it has been sought to support the damages awarded under this head; but it has been...

To continue reading

Request your trial
20 cases
  • Hamid; Yeo Kim Kuan
    • Malaysia
    • High Court (Malaysia)
    • 1 Enero 1968
  • Chia Kok Bin; Thangavelu
    • Malaysia
    • High Court (Malaysia)
    • 1 Enero 1981
  • Smith v Central Asbestos Company Ltd
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 26 Mayo 1971
    ...529): but he is not entitled to be compensated for loss of earnings during the "lost years": see Oliver v. Ashman (1962 2 Q.B. 220); Andrews v. Free brough (1967 1 Q.B. 1). The High Court of Australia have declined to follow Oliver v. Ashman: see Skelton v. Collins (39 A. L. J. R. 480); bu......
  • Fox v British Airways Plc
    • United Kingdom
    • Court of Appeal (Civil Division)
    • Invalid date
    ...... 602 ;[ 1994 ] 2 All ER 385 , HL(E) Knapton v ECC Card Clothing Ltd [ 2006 ] ICR 1084 ,E A T Lewisham and Guys Mental Health NHS Trust v Andrews [ 2000 ] ICR 707 ;[ 2000 ] 3 All ER 769 ,C A Lowe v Guise [ 2002 ] EWCA Civ 197 ;[ 2002 ]Q B 1369 ;[ 2002 ] 3 WLR 562 ;[ 2002 ] 3 All ER 454 ... Executive [ 1982 ]Q B 489 ;[ 1982 ] 2 WLR 791 ;[ 1982 ] 1 All ER 410 The following additional cases were cited in argument: Andrews v Freeborough [ 1967 ] 1 QB 1 ;[ 1966 ] 3 WLR 342 ;[ 1966 ] 2 All ER 721 ,C A Livingstone v Rawyards Coal Co ( 1880 ) 5 App Cas 25 , HL(Sc) Murray v Shuter [ ......
  • Request a trial to view additional results
1 books & journal articles
  • Dead loss: damages for posthumous breach of the moral right of integrity.
    • Australia
    • Melbourne University Law Review Vol. 40 No. 1, August - April 2016
    • 1 Agosto 2016
    ...public respect for the works of authors and signify the community's condemnation of the defendant's wrong. (1) Andrews v Freeborough [1967] 1 QB 1, 26 (Winn (2) Copyright Act 1968 (Cth) ss 195AJ (literary, dramatic or musical work), 195AK (artistic work), 195AL (cinematographic film). Moral......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT