Boardman v Sanderson (Keel and Block Third Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ormerod,LORD JUSTICE DEVLIN,LORD JUSTICE DANCKWERTS |
| Judgment Date | 07 February 1961 |
| Judgment citation (vLex) | [1961] EWCA Civ J0207-1 |
| Court | Court of Appeal |
| Date | 07 February 1961 |
[1961] EWCA Civ J0207-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Ormerod
Lord Justice Devlin and
Lord Justice Danckwerts
(An infant suing by Robert William Boardman his rather and next friend)
Lately trading as "K & B" Motors(Sued as a firm)
Appeal of Defendant
Mr. J. HARVEY ROBSON (instructed by Messrs, Smith & Hudson, London Agents for Messrs. Waller & Houseman, 90 Pilgrim Street, Newcastle-upon-Tynel) appeared. as Counsel on behalf of the Plaintiffs.
Mr. JOHN D. B. RICHARDSON (instructed by Messrs. White & Co., London Agents for Messrs. Field Cunningham & Co., Manchester, 2) appeared as Counsel on behalf of the Defendant.
Mr. J. CHADWIN (instructed by Messrs. Newburn, Walker, (Cato & Co., London Agents for Messrs. Watson, Burton Booth & Robinson, Pilgrim House, Pilgrim Street, Newcastle-upon-Tyne), appeared as Counsel on behalf of the Third Parties.
This is an appeal by the Defendant Mr. John Sanderson, from a decision of Mr. Justice Salmon given at the Newcastle Assizes on the 21st January, 1960, relating to an accident which occurred to the infant Plaintiff, Robert Arthur Boardman, so long ago as the 19th August of 1955. I am bound to say that, in the course of the proceedings, some inquiry was made as to why, the accident having happened in August of 1955, the Writ was not issued until the 15th July of 1957 and the case did not come on for hearing until the 20th January of 1960. I was informed that, owing to very considerable congestion in the Civil Lists at. Newcastle, there was delay in bringing on any civil action and that probably accounted for a considerable part of the time between the accident and the hearing. It does not, however, account for the whole of the gap and no satisfactory explanation has been given to this Court about it.
The only reason, of course, why 1 do mention this -and it has been necessary to mention it not only in this case but in others - is that when a long time elapses between en accident and a hearing in the court or first instance people's memories are apt not to be as good as they might be and it is not always easy to get the truth.
Be that as it may, the result of these proceedings was that the infant Plaintiff, Robert Arthur Boardraan, was awarded the sum of 1250 against the Defendant, and the adult Plaintiff, Robert William Boardman, by whom the infant Plaintiff was suing and who was the father of the infant Plaintiff, was awarded the sum of £75.
There was a third party, Richard Percival Keith Keel and Henry George Block who had been trading as "K & B Motors" who were a firm, but they were discharged from this suit as the learned Judge came to the conclusion that there was no negligence on the part of Mr, Keel.
This Appeal was launched by the defendant and he is asking in the first place that the Judgmant be set aside and that judgment be entered for the Defendant against each of the Plaintiffs. In the second place he is asking that, if there is to be judgment against' the Defendant, the Third Party should also be held to be wholly or at least partially liable for the accident; and thirdly the Appellant says that the adult Plaintiff, Robert William Boardman, should not succeed in any event.
The circumstances of the case were a little unusual and they arise as follows. The Third Parties, Keel and Block, were the owners of a garage in the Newcastle area which was kncwm as Holmes and Keel Ltd., Motors, and they are advertised as "Sales and Service", and the night before the 19th August, 1955, the Defendant garaged his car at the garage of the Third Party. Now, those premises consisted, as is so often seen by the roadside of today, of a series of petrol pumps separated from the garage by a wall and then behind the petrol pumps there is a garage with two entrances, possibly more, where the servicing and so on was done, and in front of the entrance to that garage there was a fairly large piece of ground which has been described as a courtyard sloping gradually down to the way out to the road.
On this particular occasion the Defendant who, as I say, had been garaging his car the night before in this garage, was taking the two Plaintiffs on a holiday to Blackpool. They all three went to the Third Parties1 garage. The car was just inside the garage with its back part pointing outwards through the doorway, but before it could be released it was necessary for the Defendant to pay whatever he owed for garage. He tried to do it by paying the man on the spot, but, as so frequently happens in those cases, was told he could not do that and he asked the Adult Plaintiff, Robert William Boardman, to go round to the office and pay whatever was owing. That Mr. Boardman proceeded to do, and he walked- al one to another entrance which is shown on one of the photographs which is before the court, and went into an office there for the purpose of paying the money.
The infant Plaintiff at that time was eight years of age and he was left in the courtyard by his father. In the meantime the Defendant began to back his car out of the garage. The car was some five to six feet in width and the garage was twelve feet according to the evidence, and the car was much nearer the right hand side of the doorway as it backed out than its left hand side, Mr. Keel, who was one of the Third Parties, was on duty in the office and he, realising that this car was backing out and perhaps having had experience of other persons doing the same thing, went to direct the Defendant. The evidence is that he went somewhere behind the Defendants car, but his attention was concentrated on the Defendants off-side which, of course, was the right hand side which was nearest to the side of the door, the pillar of the doorway, and his object was clearly, as he states in evidence, to prevent the car from coming into collision with the pillar and thereby doing damage either to the pillar or to the car or both, and secondly, of course, to prevent the car from coming into collision with any other care that might have been in the courtyard. We do know that had this car as it backed out of the garage been turned ever to its right it must have come into collision with the other cars parked in the courtyard. Be that as it may, that is where Mr. Keel's attention was and it is clear from evidence that is also where the Defendant's attention was, because his evidence is that he was looking over his right shoulder, that he was watching Mr. Keel and paying attention to his directions and acting accordingly.
It was necessary, in order that this car should be properly backed out of the garage, that it should be backed straight out and should then be locked slightly over so that the rear end would turn slightly to the right in order that a course could be set for the way out of the courtyard onto the road; and that, indeed, is what the Defendant did.
Now in the meantime this small boy of eight years who, of course, was anxious to go to Blackpool with his father, appears to have spent some time, at any rate, in watching the cars by the pumps being filled with petrol. There is some evidence that also there was, in a corner of this wall separating the two parts of the courtyard, an air compressor for pumping the tyres, and there is some evidence that the boy played with that as boys will but that he was eventually chased away from it by the garage attendant. Be that as it may, it is not in dispute that as the Defendant backed his car out of the garage and either turned or was about to turn slightly to the right to get onto...
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