Saboor Gul (by his father and litigation friend Ghafoor Gul) v James McDonagh
| Jurisdiction | England & Wales |
| Judge | Lord Justice Nugee,Lord Justice Stuart-Smith,Lord Justice Underhill |
| Judgment Date | 19 October 2021 |
| Neutral Citation | [2021] EWCA Civ 1503 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2021/0369 |
[2021] EWCA Civ 1503
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
His Honour Judge Gargan (sitting as a Judge of the High Court)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Stuart-Smith
and
Lord Justice Nugee
Case No: B3/2021/0369
Paul Rose QC and David Rivers (instructed by Slater and Gordon LLP) for the Appellant
Tim Horlock QC (instructed by Weightmans LLP) for the Second Respondent
Hearing date: 13 October 2021
Approved Judgment
Introduction
On Saturday 17 October 2015 at about 1.35 pm the Appellant, Saboor Gul, then aged 13 years and 8 months, was crossing Bulwer Street, a residential road near Shepherd's Bush in West London, when he was struck by a Ford Focus car being driven by the 1 st Defendant, James McDonagh, travelling at about 40 mph. He unfortunately sustained very serious injuries.
The question of contributory negligence was tried as a preliminary issue before HHJ Gargan, sitting as a Judge of the High Court ( “the Judge”). In a commendably clear, careful and thorough reserved judgment handed down on 8 January 2021 at [2021] EWHC 97 (QB) ( “the Judgment”) the Judge found that the Appellant had been contributorily negligent and that it was just and equitable to reduce his damages by 10%.
The Judge refused the Appellant permission to appeal but he was granted permission by Bean LJ. In the appeal the Appellant contends that the Judge should not have made any reduction. Despite the able submissions of Mr Paul Rose QC, who appeared with Mr David Rivers for the Appellant, I do not consider that the Judge made any error and I would dismiss the appeal.
Facts
The action was brought by the Appellant against Mr McDonagh as 1 st Defendant and the Motor Insurers Bureau ( “MIB”) as 2 nd Defendant. Mr McDonagh was uninsured and the MIB was joined as having a contingent liability to satisfy any judgment against him. As a result of the accident Mr McDonagh was charged with, and pleaded guilty to, a count of causing serious injury by dangerous driving, and a further count of dangerous driving arising out of his conduct after the accident, and sentenced to a term of imprisonment. He has taken no part in the proceedings either at first instance or on appeal.
The MIB admitted primary liability and judgment was entered against Mr McDonagh for damages to be assessed. The trial before the Judge was limited to the question of contributory negligence.
There was no live evidence called before the Judge. There were a number of factual witnesses but none of them saw the accident itself, and they were not required to attend for cross-examination. There were also accident reconstruction experts instructed by the Appellant and the MIB, but they had prepared a Joint Statement in which they concluded that there were no significant areas of disagreement between them, and they were not required either.
On this material the Judge found the following facts, none of which Mr Rose has sought to challenge on appeal. In order to make sense of what follows, I should explain that Bulwer Street, which lies just to the north of Shepherd's Bush Green, runs roughly east-west between Caxton Road at its eastern end and Wood Street at its western end, and that about a third of the way along Bulwer Street (coming from the east) there is a junction with Aldine Street which runs north into it.
Mr McDonagh had an extensive criminal record, and the previous month had been given a sentence of imprisonment, suspended for 12 months, for making false representations in relation to Apple products. On the day in question he was attempting to sell Apple products to members of the public and, although he had not been convicted, the Judge found on the balance of probabilities that he was engaged in a further criminal enterprise. He was approached by police but made his way to Caxton Road where his Focus was parked, and when confronted by a police officer drove off with the door open and wheels spinning; he drove up Caxton Road, turned left (west) into Bulwer Street and hit the Claimant at (or just beyond) the junction of Bulwer Street and Aldine Street. Despite colliding with him and sustaining substantial damage to the windscreen of the Focus, he continued to drive away. There was CCTV footage which among other things showed the nature of his driving after the accident, variously described by the judge who sentenced him, and by counsel on both sides, as appalling, reckless, furious or atrocious.
The Appellant was walking from his father's shop to a learning centre in the Westfield Shopping Centre, a route he was very familiar with and which he had walked with his father many times. He walked up Aldine Street to its junction with Bulwer Street, where he would usually cross the road to the pavement on the north side of Bulwer Street. He was crossing the road when he was hit by the Focus. He suffered a very serious brain injury and took no part in the trial.
Just to the west of the junction with Aldine Street, there is a “built-out” section of the pavement on the south side of Bulwer Street. It was agreed that the Appellant was crossing from this built-out section to the northern side of Bulwer Street. Bulwer Street is a residential street with marked parking bays on each side. At the point where the Appellant crossed, the distance between the built-out section of pavement and the edge of the parking bay on the north side is 4.6m; the distance between the lines delineating the parking bays on each side is around 3.65m to 3.8m.
The Appellant was hit by the front offside of the Focus, the experts variously calculating that he had travelled 3.2m or 3.5m to the point of impact, and that it would have taken him about 2.1 seconds to travel to that point. He would only have needed to travel another 30 cm to have successfully cleared the path of the car. That would have taken him 0.18 seconds, and if he had increased his speed, he would, on the balance of probability, have avoided the impact.
The speed limit in Bulwer Street was 20 mph, but having regard to all the circumstances the Judge found that the reasonably safe speed to drive along it would have been less than that, which he put at 15 mph. The Focus was travelling at about 40 mph at the point of impact. Since there was evidence that Mr McDonagh had braked, he must have been travelling faster before that, and the Judge found that his approach speed was about 45 mph. Counsel were agreed that that meant that the Focus must have been about 42m from the Appellant when he started crossing.
If Mr McDonagh had been travelling at 20 mph the Appellant would have been able to cross safely before the car reached him, and equally Mr McDonagh would have been able to stop before reaching him if he had been travelling at 20 mph and braked when the Appellant left the kerb. Indeed Mr Rose calculated that if Mr McDonagh had been driving at 15 mph, the Appellant would have been able to cross 3.3 seconds before the Focus arrived at the point of impact, a calculation that was not challenged.
There was a parked car, a Fiat 500, in the parking bay on the south of Bulwer Street immediately to the east of the junction, and the Judge found that as a result the Appellant would not have been able to see the Focus clearly as he approached the kerb. But although there was no direct evidence the Judge found on balance that the Appellant would have looked to his right to check for traffic before setting off across the carriageway, and that he would then have had a clear view of the Focus (42m away as I have said).
There were headphones found at the scene and the Judge found that these were the Appellant's and that it was likely that he was wearing them. It was not suggested that that was in itself negligent, but the Judge said that when a person who is wearing headphones attempts to cross a road it becomes more important for them to take a careful look at the traffic because they cannot rely on their hearing to warn them of danger.
The Judge's findings in respect of fault
Those were the primary facts found by the Judge, set out with meticulous care in the Judgment between [15] and [82]. At [83] he posed as the central question whether, given his clear view of the Focus when it was about 42m away, the Appellant should have appreciated that it represented a potential danger to him as he crossed. He gave his views on that at [89] which I should cite in full, as follows (I have added numbers to the sentences):
“89. [1] The witnesses who saw the Focus comment upon how badly and how fast it was being driven. [2] In my judgment that should have been apparent to a reasonable adult who had made an appropriate assessment of the dangers he faced in crossing the road. [3] I then have to consider whether a reasonable 13 year old with the claimant's experience should be expected to have made the same judgment. [4] I accept that many children cannot judge how fast vehicles are going or how far away they are. [5] However, at 13, I consider it likely that the claimant would have experience of crossing roads on his own, even roads where traffic might be going at 40mph. [6] It would be wholly wrong to expect the claimant to have been able to estimate the precise speed of the Focus. [7] However, in my judgment a reasonable 13 year old making a careful assessment would have realised that the Focus was being driven much faster than usual. [8] Further, although the claimant did not have far to go, I consider that a reasonable 13 year old would have considered that...
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Recent Pedestrian Caselaw And An Update To Our Vulnerable Road Users Database
...very young children and in the case of teenagers, that position is now very clear. This is demonstrated once again in Gul v McDonagh [2021] EWCA Civ 1503. The uninsured defendant was being spoken to by police about a criminal investigation before he proceeded to drive off at speed. He was t......
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Recent Pedestrian Caselaw And An Update To Our Vulnerable Road Users Database
...very young children and in the case of teenagers, that position is now very clear. This is demonstrated once again in Gul v McDonagh [2021] EWCA Civ 1503. The uninsured defendant was being spoken to by police about a criminal investigation before he proceeded to drive off at speed. He was t......