Roda Sam (Previously Known as Rawdah Al-Sam) v Pascale Atkins
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,SIR PETER GIBSON |
| Judgment Date | 09 November 2005 |
| Neutral Citation | [2005] EWCA Civ 1452 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | CO/5061/2004 |
| Date | 09 November 2005 |
[2005] EWCA Civ 1452
Lord Justice May
Sir Peter Gibson
CO/5061/2004
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LUTON COUNTY COURT
(HHJ HAMILTON)
Royal Courts of Justice
Strand
London, WC2
MR K HAMER (instructed by Messrs Knowles Benning) appeared on behalf of the Appellant
MR J WATT-PRINGLE (instructed by Messrs Berrymans Lace-Mawer) appeared on behalf of the Respondent
Wednesday, 9th November 2005
This is an appeal in a case arising out of a road traffic accident from the decision and order of HHJ Hamilton in Luton County Court on 18th February 2005. The judge dismissed the claimant's claim for damages for negligence. He held that although the defendant had driven negligently her negligence had not caused the claimant's injuries. He held contingently that if he had been satisfied on the issue of causation he would have held the claimant 75 per cent responsible by her contributory negligence for the accident in which she was injured.
The claimant appeals by permission of Clarke LJ. He wrote that the appellant's case on causation was sufficiently arguable, but he would not have given permission to appeal on apportionment; any renewed application for permission to appeal on apportionment should be made to the court on hearing the causation.
The accident was on 12th February 2001 at half past six in the evening in Church Street, Dunstable, a busy four-lane shopping street. It was dark, but there were street lights. The surface of the road was wet or damp. The claimant, then aged about 37, was on foot. She had travelled by bus to a bus stop quite close to the place of the accident. She walked towards, but not as far as, a pedestrian crossing. She went to cross the road from south to north not at the pedestrian crossing.
The defendant was driving her Landrover along Church Street in a westerly direction. When the accident happened she was in the offside of the two lanes going in her direction, having apparently recently pulled into that lane from the nearside lane. Just short of the accident there are road markings reducing the lanes travelling west to a single lane to enable traffic travelling in the opposite direction to turn right. In the nearside lane was a row of more or less stationary vehicles. The defendant was overtaking at up to 20 miles per hour. At the front of the row of stationary vehicles, in the nearside lane, was a large box transit van. It had stopped, perhaps to allow the appellant and perhaps one or two other pedestrians, to cross the road in front of it. The defendant could not see through the transit van as she was overtaking it. She had changed lanes from the nearside to the offside in order to overtake the van and other stationary traffic.
Just as the defendant's Landrover came approximately level with the front of the transit van, the appellant stepped out from the front of the van into the path of the defendant's Landrover. She collided, probably with its protruding left-side wing mirror. She was knocked to the ground and suffered severe head and other injuries.
The appellant could remember nothing of the accident itself. Material evidence was given by the defendant and by Mr Trevor Coleman, a postman who saw what happened from a position immediately on the other side of the road.
The defendant had made three statements which the judge considered. Statements to the police and to her insurers were to the effect that it was only when her Landrover was virtually next door to the transit van that she was aware of the presence of the appellant. But the judge read her statement for the purposes of the proceedings as saying something slightly different. She there explained that the majority of her vehicle was level with the blue van. She estimated that her front wheels and the middle of her bonnet were level with the front of the van when she saw a figure which must have been the appellant. She was in effect saying that the appellant walked into the side of her Landrover when it was partially past the van.
Mr Coleman said that the stationary van had stopped to let the appellant cross. The judge then recorded him as saying:
"I saw a woman suddenly step out from in front of this van without looking. At the time the van was stationary. As the woman stepped out a Landrover was almost level with the van, and the woman literally walked into the Landrover. It was a glancing blow as the Landrover hit the woman and I would say that she walked into the side of the vehicle. The driver of the Landrover had absolutely no chance of either braking or taking avoiding action. As the Landrover had been approaching from behind the van, the van because of its size would have hidden the lady, who stepped out into the offside lane."
In another statement made to the appellant's solicitors Mr Coleman had said that the lady walked out in front of the transit van without stopping to check the other lane. A silver Landrover then drove along the outside, past the transit van, and knocked the lady down. He thought it was a glancing blow.
There was thus some possible differences in the evidence of both the defendant and Mr Coleman as to precisely where the Landrover was in relation to the van when the appellant stepped out.
The judge concluded without hesitation that the defendant's first statement, which accorded with Mr Coleman's statement, was more likely to be correct. The judge, who knew the location, held that a reasonably prudent driver should have anticipated the presence of pedestrians. He referred to passages in the highway code and to stopping distances for a vehicle travelling at 20 miles per hour. He thus held that the Landrover was almost level with the van when the appellant stepped out. It was highly unlikely that the appellant would have stepped into a vehicle which was already in front of her. Mr Coleman's other statement completely contradicted that view of the facts.
The judge held that the defendant was negligent. 20 miles per hour was too fast to guard against...
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