John Lunt v Bekhia Khelifa

JurisdictionEngland & Wales
JudgeLORD JUSTICE BROOKE,Lord Justice Latham,LORD JUSTICE LATHAM,MR JUSTICE HART
Judgment Date22 May 2002
Neutral Citation[2002] EWCA Civ 801
CourtCourt of Appeal (Civil Division)
Docket NumberB3/2001/2469
Date22 May 2002
John Lunt
Claimant/Appellant
and
Bekhia Khelifa
Defendant/Respondent

[2002] EWCA Civ 801

Before

Lord Justice Brooke

Lord Justice Latham

Mr Justice Hart

B3/2001/2469

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(His Honour Judge Bentley

(sitting as a deputy High Court judge))

MR T METZER (Instructed by Messrs Leigh Day & Co, London EC1M 4LB) appeared on behalf of the Appellant

MR T WALKER (Instructed by Messrs Lorenzo Zurbrugg, London WC1R 4BW) appeared on behalf of the Respondent

LORD JUSTICE BROOKE
1

I invite Lord Justice Latham to give the first judgment.

LORD JUSTICE LATHAM
2

On 30th October 2001 His Honour Judge Bentley QC, sitting as a judge of the Queen's Bench Division, found that the respondent was primarily responsible for a road traffic accident which had occurred on 6th March 1994, but held that the appellant was one-third to blame. Both the appellant and the respondent appeal to this court against the judge's conclusion on apportionment, with permission from the trial judge.

3

The accident occurred in Kennington Park Road at some time not long before 1 o'clock in the morning. Kennington Park Road at the relevant place is a straight stretch of wide road and passes the Kennington tube station at a junction with a road called Braganza Street. That junction is normally controlled by traffic lights, which have a pedestrian phase for crossing Kennington Park Road. At the time neither the main traffic lights controlling the junction nor the pedestrian lights were working. The road was described by experts as being lit in the normal way for a London street, but was, however, to some extent less well lit at this junction because of the presence of trees. The road is subject to a 30mph speed limit.

4

The respondent was driving a left-hand drive Mazda car northwards along Kennington Park Road with a passenger at (as was found by the judge) approximately 25 miles an hour. At the junction with Braganza Street he struck the appellant, who was crossing from Kennington Station to the west side of Kennington Park Road. It was clear from the experts who had been instructed by each party and who had submitted an agreed report, that the appellant had stepped approximately two paces or so into the northbound carriageway—that is the carriageway in which the respondent was driving—when the collision occurred. The judge concluded that this happened within the precincts of the area across which pedestrians would normally cross in the event of the traffic lights operating as a control for both pedestrians and vehicles.

5

The conclusion of the experts was that the time taken by the appellant to move from the central reservation out into the path of the respondent was such that the respondent was approximately 20 to 25 yards away when he did so. The experts also concluded, and the judge found, that at the time of that collision the appellant was either walking or standing, most likely walking at the relevant time. There was no evidence to indicate that the Mazda car had braked at any time before the impact, and the evidence of the respondent was that he did not see the appellant before the point of impact.

6

The judge, in determining liability in this case, did not have the benefit of oral evidence from any witness. He had before him the statements made by the respondent and his passenger; he had the statements of the police officers who attended at the scene; he had, as I have already indicated, the agreed report from the experts. He also had evidence relating to a blood sample which was taken from the appellant at hospital at 5.30am which was found on analysis to contain 206mg of alcohol per 100ml of blood. A back calculation had been carried out which suggested that at the time of the accident the appellant's blood level alcohol would have been of the order of 274mg per 100ml, that is three and a half times the permitted limit for driving.

7

On the basis of that evidence the judge concluded that as far as the respondent was concerned there was an undoubted risk of which he should have been aware that there would be pedestrians in the area and that it behoved him to keep a sharp lookout, particularly when approaching this junction at which there was the tube station because of that risk. He concluded that, there being no evidence of braking and in the light of the respondent's own evidence that he did not see the appellant before the point of impact, the respondent had failed to exercise due care, and accordingly found that he was primarily liable for the accident which had occurred.

8

Having evaluated the evidence to which I have already referred in relation to the position of the appellant, he came to the conclusion that the appellant must simply have walked straight out in front of the respondent without taking account of the fact and probably not having seen the presence of the respondent's car. Accordingly he considered that he too had failed to take due care in this case for his own safety. It was in those circumstances that he concluded that the respective responsibility for the accident should be apportioned for the purposes of contributory negligence as to one-third to the appellant and two-thirds to the respondent.

9

The judge had been referred in the course of argument to certain authorities by the appellant relating to claims arising out of accidents in which the injured party had been affected by alcohol. The judge indicated that from those authorities he had gleaned the fact that in none was such a claimant held more than 40 per cent to...

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