Satnam Rehill v Rider Holdings Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Patten,Lord Justice Ward |
| Judgment Date | 16 May 2012 |
| Neutral Citation | [2012] EWCA Civ 628 |
| Docket Number | Case No: B3/2011/1645 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 May 2012 |
[2012] EWCA Civ 628
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRADFORD COUNTY COURT
Mr Recorder Miller
Claim No. 8BD02996
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lord Justice Richards
and
Lord Justice Patten
Case No: B3/2011/1645
Alan Jeffreys QC and Peter Freeman (instructed by Keoghs LLP) for the Appellant
Rodney E Ferm (instructed by Petherbridge Bassra) for the Respondent
Hearing date : 2 May 2012
This is an appeal against an order of Mr Recorder Miller, sitting at Bradford County Court, on the determination of the issue of liability in a claim for damages for personal injury sustained when the claimant was run over by a bus driven by an employee of the defendant company. The Recorder found the defendant liable, subject to one third contributory negligence. The defendant appeals, with permission granted by Jackson LJ, on the ground that the Recorder should not have found primary liability on the part of the defendant, alternatively that he should have found a much higher level of contributory negligence on the part of the claimant.
The facts
The facts, in outline, are these. On 28 December 2005 a Mr Shad was driving one of the defendant's single decker buses in Bradford city centre. It was lunch-time. Visibility was good and pedestrians were plentiful, catching the post-Christmas sales. The bus stopped at a bus stop in Bridge Street and then travelled a short distance to traffic lights at a junction where it was to make a 90 degree left turn from Bridge Street into Hall Ings. It stopped at the lights. When the lights changed to green it began to move forwards. Immediately ahead of it, on the apex of the bend into Hall Ings, was a controlled pedestrian crossing. The red man on the crossing lights was showing against pedestrians. The claimant, however, stepped off the nearside pavement onto the crossing (or into the carriageway just beyond the crossing) and started to cross in front of the bus as it turned the corner. He was struck by the front nearside of the bus and fell to the ground. The bus was travelling at a slow speed but by the time it stopped its front nearside wheel had gone over the claimant, causing him serious crush injuries.
The bus driver, Mr Shad, subsequently pleaded guilty in the magistrates' court to an offence of driving without due care and attention on the occasion of the incident.
There are various points that I need to elaborate. First, it was the claimant's case that he had been crossing from the central island located on the offside of the bus and had therefore passed in front of the driver of the bus before he was struck. Although the claimant himself was found to be an unreliable historian, there was some witness evidence to support him on this point. But on the basis of CCTV footage from inside the bus, the Recorder found that the claimant had come from the pavement on the nearside of the bus and that the witness evidence to the contrary effect could only be correct to the extent that the claimant might have come from the central island before seeking (quickly and ill-advisedly) to retrace his steps.
At the time of the driver's conviction in the magistrates' court the CCTV footage had apparently not come to light and the available evidence pointed to the claimant having come from the central island on the offside and having therefore passed in front of the driver. The full evidential picture emerged only on examination of the CCTV footage.
The CCTV footage showed the bus stationary at the bus stop in Bridge Street until 13.16.36 (i.e. 36 seconds past 1.16 pm). The bus then moved off slowly and stopped at the traffic lights by the junction at about 13.16.46. It moved off from the traffic lights just before 13.17.31, when the lights had changed to green. In a frame timed at 13.17.31, when the bus is moving off, a male pedestrian can be seen just about to step off the offside pavement into the carriageway at or slightly beyond the pedestrian crossing. In the next frame, at 13.17.33, he can be seen a few feet into the carriageway, just in front of the bus, which is still moving forward. At 13.17.35 the bus has gone past the point where the man was crossing, and there is no sight of the man.
The man shown on the CCTV footage was identified by a witness, Mr Day, as the claimant. Mr Day had assisted the claimant when he was trapped under the bus. The Recorder described him as an impressive witness and accepted his evidence. The Recorder said moreover that when one considered the overall sequence of events it was inconceivable that the man who had stepped well off the kerb by 13.17.33 was not the claimant. None of the witnesses mentioned anyone else putting themselves in harm's way or having a near miss.
The CCTV footage from a different camera showed a female passenger seated at the front nearside of the bus. Her reaction at 13.17.33, when she was raising her hand, suggests that she saw what was about to happen. The Recorder relied on her reaction at 13.17.35, when she had put her hand to her mouth, as strongly suggesting that the impact had occurred by 13.17.34 at the front nearside of the bus.
The driver, Mr Shad, was no longer employed by the defendant and did not give evidence at the trial. There were in evidence, however, records of his interviews by the police. In an interview on the day of the accident he said that he saw a man come in front of his screen so quickly that he did not know where the man came from; he braked but could not avoid him; he saw him as he hit the bus. In a second interview some months later, in May 2006, Mr Shad said that he did not know if the man came from the right or the left; he was looking at the nearside mirror; his speed was between 3 and 5 mph; he continued turning, otherwise he would have hit the central island; but he braked as soon as he saw the man, and after that it took the bus 2 to 3 metres (or 6 to 7 feet) to stop.
On the question of speed, the Recorder said that several witnesses talked about the bus at the material time going at "a brisk walking pace", which he took to be 4 mph, i.e. the middle of the bracket given by Mr Shad.
On the question of braking, the Recorder observed that Mr Shad did not undertake an emergency stop. He referred to the evidence of a police officer as to the final position of the bus, which was that the front of the bus had cleared the pedestrian crossing by about 45 feet. He also referred to certain other witness evidence, and quoted in particular from the statement of a Mr Whittaker, as follows (the passage in italics was interpolated by the Recorder):
"I saw a single decker bus swinging round the corner from Bridge Street. The front left corner of the bus was hanging more or less over the centre of the crossing and the front wheels were rounding the corner. The man was on the crossing but the corner of the bus had caught one of his legs and it was sited under the bus. His other leg was underneath him and he was losing his balance. As he was beginning to fall he was twisting to his right side and going down. He fell down, ending up on his back. The bus was rounding the corner, so due to the position of the wheel, set back from the front of the bus, they had not yet reached the man. As the bus continued it began to hang the front of its body over the man and covered more of him. The front wheel was turned and thus was in direct line with his hips. As the wheel [that is clearly the front nearside wheel] reached him he was laid flat on his back shouting, 'Stop' and trying to grab at the bus with his hand. The front wheel hit the man on the hips and pushed him slightly forward before riding up on to him. The bus lifted as it went over him. The man was screaming as the wheel went over him. The bus driver didn't seem to know that he had run over someone as its speed did not alter. The bus continued down Hall Ings and the man was trapped beneath the bus, between the bus and the road. The bus made no attempt to stop and I jumped over the railings and started to bang on the side of the bus …. I ran along the bus for about three or four metres and the driver then brought the bus to a standstill."
What follows in the Recorder's judgment sets out the core of his reasons for his finding of liability against the defendant:
"19. Going back to that second police interview in May 2006, Mr Shad was asked why did he not do an emergency brake and he said, 'I was confused. I wanted to hard brake.' It was put to him that the accident experts had claimed that he should have stopped within six feet given the speed he was going but the front of the bus had gone 45 feet from the crossing. Could he explain that discrepancy? He said, 'I don't know. I stopped as soon as possible.' I am quite satisfied that a reasonably careful and observant professional bus driver would have noticed the claimant as he left the kerb. This is not a case … where the driver had to concentrate on a vehicle in front of him. Mr Shad was very experienced and familiar with this turn. The front of the bus was established in Hall Ings when the emergency arose and whilst he would have wanted to keep an eye on the nearside rear of the vehicle clearing the corner, he would have known from much past experience that he was on the right line. Indeed, the problem itself arose to his nearside front in any event. He ought reasonably to have been alerted by the claimant leaving the pavement at or slightly beyond the crossing point.
20. On the CCTV the claimant has already...
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