Fitzgerald v Lane
| Jurisdiction | England & Wales |
| Judge | SIR EDWARD EVELEIGH,LORD JUSTICE NOURSE,LORD JUSTICE SLADE |
| Judgment Date | 06 March 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0306-4 |
| Docket Number | 87/0225 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 March 1987 |
[1987] EWCA Civ J0306-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(SIR DOUGLAS FRANK Q.C., Sitting as a
Deputy High Court Judge)
Royal Courts of Justice
Lord Justice Slade
Lord Justice Nourse
Sir Edward Eveleigh
87/0225
and
MR. WILLIAM GAGE Q.C. and MR. SIMON BROWN (instructed by Messrs. Barlow Lyde & Gilbert) appeared for the Appellant (First Defendant).
MR. DERMOD O'BRIEN and MR. HENRY DE LOTBINIERE (instructed by Messrs. Joynson-Hicks) appeared for the Appellant (Second Defendant).
MR. ROBIN STEWART Q.C. and MR. KIERAN MAY (instructed by Messrs. Underwood & Co.) appeared for the Respondent (Plaintiff).
The carriageway of Esher High Street is 30 feet wide. It runs approximately north and south. On the afternoon of 21st March 1983 the traffic was busy. There were two lanes of traffic moving south. The nearside lane had been travelling slowly and a car had stopped just before the studs of a pelican crossing. There was a line of traffic behind it and there were other stationary vehicles facing south in a line beginning at the other side of the crossing. A second line of traffic moving south was travelling fairly freely with the lights of the pelican crossing showing green in its favour. The plaintiff, a young man of 22 years of age and six feet tall, walked briskly on to the crossing and crossed the road close to the studs on the north side. When he reached the centre of the road he was struck by the offside front corner of a Morris 1100 driven by the first defendant from north to south. He was thrown up on to the bonnet and into contact with the windscreen which shattered and then he was propelled forward and on to the offside of the road where he was struck by a Ford Cortina driven by the second defendant in the opposite direction. The plaintiff sustained multiple injuries and in particular injury to the neck which resulted in partial tetraplegia.
Sir Douglas Frank Q.C., sitting as a Deputy Judge of the Queen's Bench Division, found that all three parties had been negligent. He assessed the total award of damages at the sum of £596,553.67. He held that both drivers were responsible for the plaintiff's tetraplegia. He then said:
"As to the apportionment of the liability, on the facts I have recited I find that it is impossible to say that one of the parties is more or less to blame than the other and hold that the responsibility should be borne equally by all three."
On the basis of that finding he ordered judgment to be entered for the plaintiff against each defendant for two thirds of the plaintiff's damages.
Both defendants now appeal. each says that the learned judge was wrong in holding him to have been negligent. Alternatively, each says that the other and the plaintiff should have been ordered to bear a greater share of the responsibility. The second defendant further contends that the learned judge was wrong in awarding a sun of money in respect of the expense of conversions to the house of the plaintiff's parents as well as a sum for him to carry out conversions on a house which he wishes to buy.
The first defendant's evidence is well summarised in the judgment:
"He was driving a Morris 1100 in the offside lane which was clear of traffic whereas the nearside lane was filled with traffic bumper-to-tail. He said that his speed approaching the crossing was 15 to 20 miles per hour, that he drove over the crossing and afterwards saw a blur of a person in a running stance looking straight ahead. The plaintiff impacted himself on the nearside of the wheel arch and then smashed the windscreen. He said that he immediately braked and stopped 20 to 30 feet from the crossing. He was certain that the collision did not take place on the crossing but some 20 feet beyond it. On the contrary, approaching the crossing he took a precautionary glimpse to the left and saw cars on the crossing. He had not seen the plaintiff before the blur appeared because the cars on the nearside lane blocked his view."
The learned judge concluded that the first defendant's car was travelling at about 30 miles per hour. In my opinion, this conclusion was supported by the evidence. There is no doubt that the collision occurred on the crossing and that the point of contact with the first defendant's car was the offside headlamp and wing, which had been damaged. A Mr. Greenaway, following behind the first defendant, saw the plaintiff walking briskly across the nearside pavement towards the crossing, although he did not see him on the crossing. The evidence of the first defendant, which was clearly wrong as to the point of impact with his car and the position of the plaintiff in the road, is a strong indication that he knew little or nothing about it until the moment of impact, or the smallest fraction of a second before, and yet the plaintiff had almost reached the centre of the road. The learned judge was fully entitled to conclude that the first defendant was negligent. He was not keeping a proper look-out and, in my opinion, was travelling at an excessive speed, bearing in mind the situation that existed on his nearside.
At first sight, I thought that to find the second defendant negligent was requiring a much too heavy standard of skill and care from him. If the collision between the second defendant's car and the plaintiff occurred at the distance from the crossing where the plaintiff's body was found, the tine between the first and second collision with the vehicles would be less than a second. However, the evidence in the case, and particularly that of the second defendant himself, provides us with further material in which to assess his conduct.
The second defendant said that he saw the plaintiff on the pavement and saw him rush across the road. At one point in his evidence he said that he braked gently when the plaintiff started to cross, but he had also said that he braked when he saw the plaintiff bounce from the other car and made no reference to having slowed down before that. When cross-examined, he said that he could have stopped before he did. The learned judge came to the conclusion that the second defendant was on a collision course immediately the plaintiff left the pavement and yet the defendant carried on as though nothing unusual had happened, and then, when the plaintiff was struck by the first defendant's car, the second defendant did not brake sufficiently, or as effectively as he would have been able to do had he so controlled his car beforehand as to be ready to cope with an emergency. This, I think, is the effect of the learned judge's findings.
There were a number of answers given in evidence by the second defendant which would entitle the learned judge to come to this conclusion. He saw the witness and clearly he did not accept the statement which he made at one point in his evidence, namely that he braked gently when he saw the plaintiff leave the pavement and braked "immediately" when he saw the collision with the first defendant's car. He did not accept the second defendant's evidence that he stopped one yard short of the crossing. The evidence of Mrs. Milne gave the overall impression that the second defendant could have stopped sooner than he did. The blow to the plaintiff must have been severe because not only was his body turned round in the road, but the bumper bar was dented and the number plate and valance damaged.
I confess that I have had difficulty in seeing where the second defendant was to blame, particularly as his claim that he braked gently when he first saw the plaintiff leave the pavement is, to some extent, supported by the evidence of Mrs. Milne when she says that he was travelling slowly. However, the learned judge heard all the witnesses and I am not prepared to substitute my own assessment of the manner in which the second defendant was driving for that carefully arrived at by the learned judge. That being so, I do not think that his decision should be reversed.
The plaintiff does not challenge the finding that he was guilty of contributory negligence. The learned judge dealt with the question of contributory negligence and contribution together. I repeat what he said:
"As to the apportionment of the liability, on the facts I have recited I find that it is impossible to say that one of the parties is more or less to blame than the other and hold that the responsibility should be borne equally by all three."
After assessing the damages, he said:
"In view of my findings, one-third of the amount of the award will be paid by each of the defendants."
He then accepted the submission of counsel for the plaintiff that the order to give effect to his findings would be that judgment should be entered for the plaintiff against both defendants for two-thirds of the plaintiff's claim.
The learned judge's finding indicates that he thought that each of the three parties was equally at fault. That being so, the correct form of judgment should be "judgment for the plaintiff for 50% of his claim against each defendant". There would then follow an order for contribution between the two defendants on a fifty-fifty basis. Subsection (1) of section 1 of the Law Reform (Contributory Negligence) Act 1945 reads as follows:
"Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall...
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