Eagle (by her litigation friend, E E Giles) v Chambers

This is the judgment of the court.

This is the claimant's appeal from the order of Moses J made on 19 November 2002 in the Queen's Bench Division of the High Court sitting in Norwich. The claimant pedestrian was very seriously injured when struck by a car driven by the defendant. The judge gave judgment for the claimant subject to 60% contributory negligence. The claimant does not deny that she bears some share in the responsibility for her injuries but challenges that apportionment. At the end of the hearing we announced that the appeal would be allowed and a finding of 40% contributory negligence substituted, but that because of pressure of time that day, we would give our reasons in writing later. This we do now.

The accident took place as long ago as 22 June 1989. The judge was obviously concerned about how he should approach the oral evidence when it had all happened so long ago and the witnesses were more likely to be trying to remember what they had said in their witness statements than what had actually happened. He was therefore anxious first to establish what independent recollection they had rather than relying on their witness statements as evidence in chief in the usual way.

The time, place and road conditions were not in dispute. The accident took place at about 11.30 pm on the south bound carriageway of Marine Parade, Great Yarmouth. Marine Parade is a dual carriageway with two rows of parking spaces between the two carriageways. The southbound, sea side carriageway is 22.6 feet wide with a broken white line dividing it exactly in two. On that day, the weather was fine, and the street lighting good; the road is virtually straight; the visibility was therefore extremely good. An event had just finished at the Winter Gardens, which is also on the sea side of the road. There were people on the pavement, having recently come out of the building, and people going to get their cars parked on the central reservation.

The eyewitness evidence came in three different forms. Appended to the police report before the court were statements given by four eyewitnesses a few days after the event. Those eyewitnesses also gave evidence in court and all but one had also made witness statements (some time after the event) for the purpose of the civil proceedings. Julie Bowgen (as she then was) was driving down Marine Parade in the same direction as the claimant, going to drop her mother off by her father's car which was parked in the central reservation. She saw the claimant facing towards her and walking backwards along the broken white line. She was able to avoid the claimant. Michael Leveridge was her then boyfriend and a passenger in the car; they were so concerned for the claimant's safety that they stopped further down the road and he went back to try and persuade the claimant to get off the roadway. Michael Ryan and Stanley Rouse were bystanders outside the Winter Gardens. A fifth eyewitness was Julie Bowgen's father, Ted Bowgen. He had not given a statement to the police and his witness statement for the proceedings was made on 16 January 199Nevertheless, we are told that his oral evidence was extremely impressive. He had been walking down the pavement towards the point where his car was parked on the central reservation. He had also tried to persuade the claimant to get off the roadway and been told to 'fuck off'.

The claimant was then aged 17. She was dressed in light clothing. She was walking down the carriageway. She had been doing so for some time, long enough for bystanders and other drivers to be concerned for her safety and urge her to stop. She had refused in no uncertain terms. She was in an emotional state. There were various descriptions of how and where she was walking. Michael Leveridge agreed that she had been unsteady on her feet and wandering or not walking in a straight line. She had been seen walking along the broken white line, but others placed her in the offside lane at the time of impact. The judge was satisfied that she was then in the offside lane. She was struck by the offside of the defendant's car, which sustained damage to the offside front wing, front door pillar and windscreen. The defendant said that he was in the nearside lane but no one else did so. The judge was satisfied that he was in the offside lane. The defendant told the police that he was driving at about 30 to 35 mph and the judge accepted this. The defendant failed a roadside breath test but at the police station was found to be four micrograms below the limit. He accepted that he had taken enough alcohol that evening to impair his driving abilities.

Liability was denied. The judge found that had the defendant exercised the standard of care of a reasonable driver he would have seen the claimant earlier and could have taken avoiding action. The road was straight and the visibility good. The claimant was in the offside lane. At least two other cars had been able to avoid her. There was enough of a gap for the defendant either to see her or to see them taking avoiding action. Indeed the defendant had thought there were no cars in front of him, in which case there was nothing to obscure his view. He might not expect someone to be walking along the roadway, as opposed to crossing it towards the parked cars, but he should still have been able to see her if keeping a proper lookout. He had taken enough drink to affect his driving abilities. He only picked her up at the last moment. He did not brake or swerve. There was no evidence that the claimant suddenly stumbled or walked into his path. Hence not only should the defendant have seen her earlier but his failure to do so was causative of the collision.

As to contributory negligence, the judge directed himself in accordance with section 1(1) of the Law Reform (Contributory Negligence) Act 1945 that 'it is my obligation to reduce her damages to such extent as I consider just and equitable having regard to the plaintiff's share in the responsibility for that damage'. He continued:

"There can be no dispute but that she was substantially responsible for the accident. She was drunk and emotional and chose to place herself in a dangerous position. Indeed she placed herself in such a dangerous position for such a lengthy period of time that others were clearly concerned for her safety. She had rejected warnings to get off the road, warnings given by other drivers and specifically by Mr HE [Ted] Bowgen. She was sufficiently aware, as I have said, of what was going on to refuse his blandishment to get off the road and indeed swear at him."

Hence he concluded that she should bear a greater share of responsibility for the accident than the driver and apportioned it at 60%.

Mantell LJ in granting permission to appeal said this:

"On the judge's findings the negligence of the claimant would not appear to have been an effective cause of the accident and I consider it at least reasonably arguable that she should not have been found to be mainly responsible."

Mr Leviseur, on behalf of the claimant appellant, attacks only one of the judge's findings of primary fact. He argues that the judge's finding that she was 'drunk' was not supported by the evidence. There was no evidence of drunken behaviour. The only oral evidence about drink was that of Mr Ted Bowgen:

"Yes she had fell out with her boyfriend I think and she probably had a drink or two which girls do, I got three daughters, that is it."

"Well, she was just upset and said, you know, as girls do when they are upset about boyfriends."

"Just sort of sauntering slowly...