David Topp v London Country Bus (South West) Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dillon,Lord Justice Rose,Mr. Justice Peter Gibson |
| Judgment Date | 29 January 1993 |
| Neutral Citation | [1993] EWCA Civ 15 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No. |
| Date | 29 January 1993 |
[1993] EWCA Civ 15
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR. JUSTICE MAY
Royal Courts of Justice
Lord Justice Dillon
Lord Justice Rose
and
Mr. Justice Peter Gibson
Case No.
Mr. Roger Hetherington (instructed by Messrs Howell-Jones & Partners, Walton-on-Thames) appeared on behalf of the Appellant (Plaintiff).
Mr. Andrew Phillips (instructed by Messrs Cripps Harris Hall, Tunbridge Wells, Kent) appeared on behalf of the Respondents (Defendants).
HTML VERSION OF JUDGMENT
This is an appeal by the plaintiff in the action, Mr. David Topp, from the decision of Mr. Justice May given after the trial of the action on 8th November 1991 whereby it was adjudged that the plaintiff's claim again the defendants, the London Country Bus (South West) Ltd., be dismissed.
The claim is a claim for damages arising out of the death of the plaintiff's wife, Mrs. Jacqueline Topp, on 25th April 1988. The basic facts are not in dispute and are clearly set out in the judgment of the learned judge. The defendant company runs a bus service in the region of Epsom, and one of its buses was hijacked by a third party (who has never been identified) at about 11 p.m. on the night of the 25th April. Very shortly afterwards the bus, driven by the hijacker, knocked down and killed Mrs. Topp as she was cycling home from work in Dorking Road Epsom.
The bus in question is what is called a minibus. We have a photograph of it in a Metropolitan Police Notice appealing for assistance after the accident. It is a fairly familiar type of small bus. It was described in evidence as a Leyland Sherpa van. It was based at the defendants' Leatherhead Depot. Its last journey before the accident was on Route E.1 from Epsom District Hospital, through the centre of Epsom, out in the direction of Tattenham Corner, and eventually back to the Epsom District Hospital. It was then, in accordance with the usual practice of the defendants, parked in a lay-by by the bus stop directly opposite the Epsom District Hospital and outside the White Horse Public House, as can be seen from the photograph in the police appeal for assistance.
In accordance with usual practice, the driver, Mr. Green, left the bus in that lay-by at the bus stop at about 2.35 p.m. on 24th April 1988. He left it unlocked, with the ignition key in it. He had then a 40 minute rest period before resuming his duties, driving a different bus. There was an arrangement under which the drivers could spend their rest period in the hospital. The expectation was that another driver, about eight minutes after Mr. Green had left the bus in the lay-by, would pick the bus up and drive the same route. But the other driver, who should have picked the bus up at about 2.43 p.m., did not do so because he was feeling unwell. His shift would have been non-compulsory overtime, and he did not report for his overtime. The bus therefore remained in the lay-by. Mr. Green saw it there later and reported that it was still standing there. Therefore, there is no doubt that the depot knew that the bus was there. But, possibly because of shortage of drivers or available staff, nothing was done to pick the bus up that evening. It was taken by somebody who has never been traced just before 11.15 at night, driven for a relatively short distance until the point where Mrs. Topp was knocked down and killed, and it was abandoned round the corner from there.
In these circumstances, the plaintiff's claim is founded in negligence on the basis that the bus company, knowing that there must be a threat that a bus left ready to be driven away might be stolen and that whoever stole it, a joyrider, might drive dangerously and kill or injure someone else or damage property, was in breach of duty in failing to collect the bus or see that it was locked, without an ignition key and not capable of being driven away.
Mr. Hetherington has submitted that there was a particular danger because the lay-by was outside or near to a public house. I do not think he suggests that its proximity to the hospital added any particular danger. He...
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