Maria Sabir (Suing by her Litigation Friend, the Official Solicitor) v Nana Osei-Kwabena (Respondent/Claimant)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Tomlinson,Lord Justice Lindblom,Lady Justice Arden |
| Judgment Date | 25 November 2015 |
| Neutral Citation | [2015] EWCA Civ 1213 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 November 2015 |
| Docket Number | Case No: B3/2014/0407 |
[2015] EWCA Civ 1213
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
His Honour Judge William Davis QC sitting as a Judge of
the High Court
HQ13X01255
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice Tomlinson
and
Lord Justice Lindblom
Case No: B3/2014/0407
William Hoskins (instructed by Greenwoods) for the Appellant
Christopher Melton QC and Jeremy Greenfield (instructed by Birchall Blackburn Law) for the Respondent
Hearing dates: 10 November 2015
The short point on this appeal is whether the trial judge, His Honour Judge William Davis QC, the Recorder of Birmingham, then sitting as a Judge of the Queen's Bench Division, has erred in his assessment of the extent to which the Respondent/Claimant's damages should be reduced to reflect her share in the responsibility for the grievous injury which she sustained when struck by a motorcar driven by the Appellant/Defendant. The trial judge found that her share in the responsibility for the damage was 25%. On this appeal the Appellant/Defendant contends that the judge should have found her share in the responsibility to be 50% or something close thereto.
As recently as February of this year the Supreme Court reminded us that in this field there is rarely a demonstrably correct answer. Differing views should be respected within the limits of reasonable disagreement. So unless the judge has taken into account some irrelevant consideration, or failed to take into account a relevant consideration, we should only interfere with the apportionment made by the judge below if it was not one which was reasonably open to him. See Jackson v Murray [2015] UKSC 5 SC per Lord Reed at paragraphs 27, 28 and 35. Sometimes the courts have expressed the same sentiment by suggesting that an appellate court should only interfere with such an evaluation exercise where the outcome appears to be "plainly wrong", the expression in fact used by Lord Hodge in the same case at paragraph 57. The litigation history of Jackson v Murray does not make happy reading. The facts of that case are shortly summarised by Lord Reed at paragraph 1 of his judgment:-
"A school minibus draws up on a country road on a winter's evening. Two children get off. One of the children tries to cross the road. She steps out from behind the minibus, into the path of an oncoming car. The driver is driving too fast: he has seen the bus, but has made no allowance for the possibility that a child might attempt to cross in front of him. He is not keeping a proper look-out, and does not see her, but he is going too fast to have stopped in time even if he had seen her. His car hits the child, causing her to sustain severe injuries. If he had been driving at a reasonable speed, and had been keeping a proper look-out, he would not have hit her."
The trial judge found that the accident was caused by the driver's negligence but assessed the child's contributory negligence at 90% and reduced her award of damages accordingly. On appeal the Inner House reduced this assessment to 70%. On appeal to the Supreme Court, the assessment was reduced still further, to 50%, but only by a majority of three members of the court to two. The minority would have left undisturbed the assessment of the Inner House, although they for their part might have concluded that the child was in fact two thirds responsible. The difference between 50% and 66.6% is within the ample scope for reasonable disagreement.
Mr William Hoskins for the Appellant/Defendant very realistically recognised that in order to succeed on this appeal he must persuade us that the correct assessment of relative responsibility is in the range of 40/60 in favour of the Respondent/Claimant, or better still from the Defendant's point of view. I suspect that even a conclusion on our part that the Claimant should have been found 40% responsible might not be enough to warrant interference, although Mr Hoskins' submission was in fact that contributory negligence should here have been assessed as 50% or close thereto and that the judge's assessment was plainly wrong.
The facts of the present case may be stated very shortly. I take them from the judge's judgment which is a model of clarity and economic exposition.
At about 12.45pm on Tuesday 27 April 2010 the Claimant was struck by a car driven by the Defendant. She was on foot and crossing Green Lane, Ilford, a busy suburban road lined with shops. The Defendant was driving a Ford Focus on Green Lane, approaching the collision point from the Claimant's right hand side. The Claimant was 30 years old, slightly built, less than 5ft tall and 5 months pregnant. She broke several bones, suffered significant abdominal injuries, and subsequently miscarried the child. Most significantly however she suffered what the medical evidence described as "the worst sort of traumatic brain injury" and she has no recall of the accident.
The Claimant was crossing Green Lane immediately to the rear of a parked Saab motorcar which had stopped at a point where double yellow lines give way to single yellow lines. She was some 19 metres beyond a traffic light controlled junction where there were pedestrian crossing facilities. She had just alighted from that car and moved to the rear of it before stepping out into the road in order to cross. The judge made no finding that she stopped at the kerbside between alighting from the vehicle and stepping into the road. She was struck by the Defendant's car when she had walked 3.6/3.7 metres into the carriageway, from the Defendant's nearside.
The judge's detailed findings were as follows:-
a) The Defendant was approaching the scene of the collision at 30 miles per hour.
b) The Defendant only became aware of the Claimant in the road ahead of him when he had insufficient time to react; on the Defendant's account, which was there was no reason to doubt, she was about 3–4 metres in front of him when he became aware of her.
c) It would have taken around 0.2 seconds for the car to travel 4 metres at 30mph. That is wholly insufficient time within which the Defendant could have reacted. A reasonable reaction or perception response time to attribute to the Defendant is 1.5 seconds. This is the time within which he could reasonably have been expected to detect and to perceive the hazard, make the decision what to do and then carry out the appropriate action.
d) The Claimant was not walking briskly across the road; her walking speed was 1.4 metres per second.
e) The Claimant was in the road for about 2.6 seconds before being struck.
f) When the Claimant entered the carriageway the Defendant was just over 35 metres away from her and travelling at about 13 metres per second.
g) The Defendant thus drove some 30 metres without being aware of the Claimant crossing the road in front of him.
h) The Defendant had a clear view of the Claimant as he approached, albeit he did not see her. He would have been in a position to see the point at which she crossed the road from a distance of about 70 metres.
i) Likewise the Claimant had a clear view of the Defendant's car as it approached travelling at a normal speed.
j) Had the Defendant kept a proper lookout and seen the Claimant when he should have done he would have avoided a collision simply by taking his foot off the accelerator pedal.
k) The Claimant saw the car approaching but misjudged its position and/or the time available to her to cross the road. Her misjudgement was by a small margin. Had she had the time to take another pace across the road she would not have been struck. As it is she was struck by the front offside of the car some 20 cms from the offside (outside) wing.
The judge thus rejected as "untenable" the argument urged on the Defendant's behalf that he was confronted with a sudden emergency and that there was no time for him to have done anything whether or not he had seen the Claimant.
Section 1 (1) of the Law Reform (Contributory Negligence) Act 1945 provides:-
"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 be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage"
Although the judge did not in terms refer to that sub-section he directed himself correctly by reference to the authorities as they then stood, which did not include Jackson v Murray. However whilst that case contains an illuminating analysis of the authorities and in particular of the proper approach to be taken by an appellate court, it adds nothing which was not already part of the learning on this topic.
The judge expressed his conclusion as follows:-
"The causal potency of the Defendant's failure to pay proper attention to the road ahead as he drove his car at about 30 mph along a busy suburban road was very substantial given that he was in a car and he ought to have foreseen the likelihood of pedestrians being on the road. His blameworthiness in not seeing the Claimant when she was there to be seen likewise was substantial. Had he kept a proper lookout and seen the Claimant when he should have done, avoiding a collision would have involved no more than the Defendant taking his foot off the accelerator. The...
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