Baker v Willoughby
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HARMAN,LORD JUSTICE WIDGERY,LORD JUSTICE FENTON ATKINSON |
| Judgment Date | 10 December 1968 |
| Judgment citation (vLex) | [1968] EWCA Civ J1210-5 |
| Date | 10 December 1968 |
| Court | Court of Appeal (Civil Division) |
[1968] EWCA Civ J1210-5
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
(From; Mr. Justice Donaldson - London)
Lord Justice Harman
Lord Justice Widgery and
Lord Justice Fenton Atkinson
Mr. H. TUDOR EVANS, Q.C. and Mr. DEREK WOOD (instructed by Messrs, Michael Stone & Co.) appeared on behalf of the Appellant (Defendant).
Mr, HUGH GRIFFITHS, Q.C. and Mr. DEREK HILL-SMITH (instructed by Messrs. Parlett Kent & Co.) appeared on behalf of the Respondent (Plaintiff).
I will ask Lord Justice Widgery to give the first judgment.
At about 8 a.m. on the 12th September, 1964, the plaintiff was crossing Croydon Road, Mitcham, on foot, when he was struck and injured by a Mini car driven by the defendant. In an action heard before Mr. Justice Donaldson on the 11th March, 1968, the plaintiff established that the defendant was 75 per cent, responsible for the collision and he obtained judgment for £1,202. 10s. Od. The defendant now appeals against the judge's findings both on liability and quantum.
Croydon Road is a straight road throughout its relevant length and is 33 feet wide. It runs across Mitcham Common and thus, in effect, through open country, and is an important highway. It is subject to a speed restriction of 40 miles an hour.
On the moring in question the plaintiff was apaesenger in a van driven by a Mr. Gladwyn along Croydon Road in the direction of Mitcham when the van ran out of petrol and came to rest on its correct side of the road near a public-house called the Ravensbury Arms. Gladwyn took a container from the van and crossed the road with a view to obtaining a lift back to a garage, which they had recently passed, and thus obtaining petrol. The plaintiff remained with the van. After an interval Gladwyn persuaded the driver of a baker's van to stop and pick him up but as he was getting into the vehicle he realised that he had no money and called to the plaintiff to produce some. The plaintiff then set off to cross the road and was struck by the defendant's car (also travelling in the direction of Mitcham) when he was in the centre of the road.
The plaintiff said in evidence that before crossing he had looked once towards his right, that is towards Croydon, and had seen a "bullnosed" car about 100 yards away. Satisfied that he could safely cross, he had walked to the centre of the road, paused to look to his left and then taken a further step when he heard a screech of brakes and was hit. He thought that he musthave misjudged the speed of the bullnosed car, and admitted at once that the accident was his fault, but it was not until later that he realised that he had been hit by a different car which had overtaken the one which he had seen. He denied that he had run out into the road and said that he had walkednormally.
There were in fact three cars, including that driven by the defendant, approaching from Croydon at this time, and each of the drivers gave evidence. Mr. Vicars, called by the plaintiff, said that he was driving a 1957 Ford Prefect and saw the stationary van with the plaintiff standing beside it. As he was about to pull out to pass the van he saw the defendant's Mini in his driving mirror and allowed it to pass. The defendant flashed past at a good 50 miles an hour and hit the plaintiff as the latter walked across the road. He was a couple of hundred yards from the plaintiff when the defendant overtook him.
Mr. Vicars' evidence was clearly hostile to the defendant, and he maintained that there was no other moving car in front of him which might have obscured his view.
Mr. Richardson, called by the defendant, said that he was driving a 1938 Morris 8 and was in front of the Ford Prefect driven by Mr. Vicars. Approaching the scene of the accident he had heard a blast on a motor car horn and, using his driving mirror, had seen the defendant overtake Mr. Vicars. When he was about 200-300 yards from the stationary van he was in turn overtaken by the defendant. He did not see the plaintiff at this stage but noticed that the defendant's brake lights went on some 20-30 feet before the defendant reached the van and then saw the plaintiff diving out of the path of the defendant's car.
Finally, the evidence of the defendant was that he had been travelling at about 30-35 miles per hour and had at that speed overtaken first the Ford Prefect and then the Morris 8, the latter at a point 300 yards before the scene of the accident. He had seen the stationary van with the plaintiff standing beside it. When he was about 10 yards from the van the plaintiff suddenly ran out into the road, giving him no chance ofavoiding a collision.
The learned judge reviewed the evidence and pointed to the discrepancy between the evidence of Mr. Vicars and that of Mr. Richardson as to which of their cars was in the lead. Both the plaintiff and the defendant seem to have supported Richardson's version since his Morris 8 was the only car which could have been described as "bullnosed". The judge decided that he need reach no conclusion as to which was the correct version (and I quote from his judgment) "since all are agreed that the Mini was overtaking the last of the cars not less than 200 to 300 yards from the scene of the accident. From this moment onwards the defendant must have had a clear view of the plaintiff". The judge accepted the plaintiff's evidence that he had not run across the road but had walked out in a normal manner and concluded that the defendant's failure to avoid him must be due to the defendant driving at an excessive speed or failing to keep a proper look-out. or both, and that the defendant was negligent.
Of the plaintiff the judge said this: "However I do think the plaintiff should have seen that there were at least two cars approaching from the direction of Croydon and should have realised that they would have to pull out to pass Mr. Gladwyn's van. He should therefore have waited until they had passed before attempting to cross the road. No doubt he did not wish to keep the baker's van waiting. To this extent however he contributed to the occurrence of the accident by his own negligence and I think that his claim to damages must be abated by 25 per cent."
The defendant's first submission is that the judge found against him on the footing of excessive speed when there was no evidence to support this except the evidence of Mr. Vicars, which was manifestly unreliable. I do not agree that the judge founded upon Mr. Vicars' evidence — on the contrary, his finding of negligence against the defendant is based on the fact that the latter had the plaintiff in full view during the last 200 yards before impact and took no evasive action. It is from this that the judge concludes that either the defendant's speed wasexcessive or his look-out faulty, and I see no reason to criticise this conclusion if one accepts, as I do, the judge's finding that the plaintiff did not run into the road, but walked out normally.
The defendant next contends that the apportionment of liability as to 75 per cent, to the defendant and 25 per cent. to the plaintiff was incorrect and contrary to the evidence. The judge has given no reasons to support this apportionment, but I do not criticise him for this as the matter is often one of impression and not susceptible of precise calculation. As Lord Wright said in British Fame v. Macgregor (1943 Appeal Cases 197 at page 201): "It is a question of the degree of fault depending on a trained and expert judgment considering all the circumstances and it is different in essence from a mere finding of fact in the ordinary sense. It is a question not of principle or of positive findings of fact or law but of proportion, of balance and relative emphasis and of weighing different considerations. It involves an individual choice or discretion as to which there may be differences of opinion by different minds".
The same considerations make this Court extremely reluctant to interfere with such an apportionment, as appears from the authorities recently reviewed by Lord Justice Winn in Brown v. Thompson (1968 2 All England Reports 708), when, in particular, the following passage from the judgment of Lord Justice Willmer in Quintas v. National Smelting Co. (1961 1 All England Eeports 636) was cited with approvals "The problem of apportioning blame where there has been fault on both sides is one that has been familiar in the Admiralty jurisdiction for fifty years. It has long been held to be a matter primarily for the discretion of the trial judge who finds the facts and has the advantage of seeing the participants at first hand and assessing the degrees of their responsibility. It is well settled that in the absence of any error of principle an appellate tribunal will interfere with the trial judge's apportionment only in exceptional cases and then, as a rule, only where it can be seen that the trial judge has failed to give effect to some materialpoint or has failed to take into account some material consideration".
Accordingly I would not interfere in the present case unless some error in the judge's approach is clearly discernible, as I think it is.
The basis of the finding against the defendant is that he had a clear view of the plaintiff for at least 200 yards prior to impact, and took no action. The basis of the finding against the plaintiff is that he did not wait for the cars to pass, and did not look to his right a second time. Each had a full view of the other whilst they were on a collision course...
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