Fletcher v United Counties Omnibus Company Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SIMON BROWN,MRS JUSTICE HALE |
| Judgment Date | 01 December 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J1201-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | CCRTF 96/1673/C |
| Date | 01 December 1997 |
[1997] EWCA Civ J1201-2
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NORTHAMPTON COUNTY COURT
(HIS HONOUR JUDGE CORRIE)
Royal Courts of Justice
Strand
London W2A 2LL
Lord Justice Simon Brown
Mrs Justice Hale
CCRTF 96/1673/C
MR CHARLES APTHORP (instructed by Messrs David Hurley Associates, Bournemouth) appeared on behalf of the Appellant/Defendant.
MS JENNIFER RICHARDS (instructed by Messrs Shoosmiths & Harrison, Northampton) appeared on behalf of the Respondent/Plaintiff.
This is the defendant bus company's appeal from a finding of primary liability made against their driver, Mr Hoarder, by Judge Corrie at the Northampton County Court on 20th November 1996 in respect of an accident which occurred when the bus was forced to make an emergency stop so that the plaintiff, a passenger who had just boarded, fell over in the aisle and sustained serious injury to her thoracic spine. The single pleaded particular upon which the driver was found negligent was:
"Driving the bus from a stationary position without first ensuring that the plaintiff was seated."
The plaintiff, a widow then 22, was held 30 per cent contributory negligent for failing to steady herself by using the fixed supports available. The hearing was concerned with the issue of liability only.
The relevant primary facts as found by the judge can be very briefly stated. The accident happened at about 10.15 am on 4th January 1995 in Daventry. The plaintiff was the only passenger who boarded the bus at the Badby Road stop, paying her fare to the driver. This was a single-operator double-decker bus with at most eight to ten people on board at the time. The plaintiff recognised a friend, Mrs Hollingshead, in the fifth row of seats back from the driver on the lower deck and decided to sit near her. As she was moving down the aisle in that direction "at a perfectly reasonable pace" not "dawdling", the bus driver "pulled out gently … and at a reasonable speed", having consciously chosen to do so without waiting for the plaintiff to take her seat. He was not behind his schedule. After "a few seconds", by which time the bus had travelled about a hundred yards from the bus stop, Mr Hoarder, the driver, "was obliged to do an emergency stop … by the activities of a red car" which emerged from a side turning. He was in no way open to criticism on that account. The plaintiff "could not reasonably have been expected to reach her seat by the time of the emergency stop". She could, however, have made use of the various vertical and horizontal tubular metal supports available in the bus to steady herself. She was "an experienced bus traveller".
The judge found the driver to have been negligent for knowingly moving off without waiting for the plaintiff to be seated. Let me now quote the most directly relevant passages in his judgment reaching that conclusion:
"… Mr Hoarder, when he gave his evidence, perfectly frankly said that he had considered waiting for the passenger to sit down, but—and this, I think, is a verbatim quote—'one also has a schedule to keep'. Then, in answer to a further question from me, he said he could have waited till the plaintiff sat down if he'd chosen to do so. He then said he'd pulled away gently."
Then a little later he said:
"…it would have been perfectly feasible…to wait without affecting the schedule at all."
Then:
"…Mr Hoarder pulled out gently, as he says, and at a reasonable speed, but prematurely, that is to say before checking, as he could and should have done, by looking in his mirror, where the plaintiff was and whether she was seated or not. If he had looked, or looked properly, my finding being that he did neither, he would have seen that she was not seated, and there was really no reason in the circumstances, because he was not in any particular hurry, he was not behind his schedule, although he clearly had it in mind, he would have seen her and the injury would not have happened or would have been substantially less severe
…as I have already said, and as he said in his evidence, he could have waited for her to sit down but chose not to, so he either did not address his mind to her safety in that sense or did not address it sufficiently."
Given the judge's further findings of fact that the driver's mirrors enabled him to see all the passengers on both decks, that the plaintiff "was entitled to sit anywhere she chose", and "there is absolutely no reason why the plaintiff should not have chosen to sit at the back if she had wanted to do so and equally on the face of it no reason why Mr Hoarder could not have seen her do that", it seems to me necessarily implicit in this judgment that wherever the plaintiff had chosen to sit the driver would have been under a duty to wait until she had sat down before he moved off.
The basis of the finding of contributory negligence against the plaintiff was straightforward and is not the subject of any cross-appeal. The judge held that she "ought to have known that it would be wise to use some sort of support and there was support available. She could have steadied herself but she did not."
The bus company contends on this appeal that on any view the apportionment of contributory negligence against the plaintiff was too low and that she knew the nature and extent of the risk and consented by her actions to bear the consequences of that risk, so that even if the driver too was negligent there should nevertheless have been a finding of 100 per cent contributory negligence against her. Principally, however, the appellants' argument is that there ought never to have been a finding of primary negligence against the driver in the first place.
In support of that contention Mr Apthorp invites our attention to three cases in particular. First, Fury v Council of the City of Cardiff [1977] Current Law, paragraph 2031, a decision of Thompson J. This report, as the judge below observed, is very truncated and it should, I think, be quoted in full:
"The plaintiff boarded a one-man-operated bus owned by the defendant. The driver after accepting her fare but before she had reached her seat began to pull away from the bus stop and into the outside lane of the road. Before completing the manoeuvre the driver was forced to brake to avoid a collision with an unknown motor-cyclist who had emerged from a cross road at a high speed. The plaintiff who had not reached her seat was thrown forward and received injuries. The plaintiff claimed damages alleging negligence by the driver, a servant of the defendant, for braking excessively and for pulling away from the bus stop before the plaintiff had taken her seat. Held, (1) that braking was necessary to avoid the collision with the motor-cyclist and in the circumstances was no harder than called for, (2) there is no duty on a driver to wait until all the passengers have taken their seats before moving away from a bus stop. If passengers appear to be able-bodied persons and there is means of securing themselves by the use of handrails, then it is reasonable for the driver to proceed with the journey and not to wait until all passengers have taken their seats."
Mr Apthorp unsurprisingly emphasises the apparent close similarity between the facts of that case and those of the instant appeal, not least the fact that there, as here, the most direct cause of the accident was sudden braking necessitated by an emergency.
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