Scott v Gavigan
| Jurisdiction | England & Wales |
| Judge | Lord Justice Christopher Clarke,Lord Justice Simon,Lord Justice Elias |
| Judgment Date | 08 June 2016 |
| Neutral Citation | [2016] EWCA Civ 544 |
| Docket Number | Case No: B3/2014/2418/PTA |
| Court | Court of Appeal (Civil Division) |
| Date | 08 June 2016 |
[2016] EWCA Civ 544
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON
MR RECORDER HOLLINGTON QC
1UD13419
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Elias
Lord Justice Christopher Clarke
and
Lord Justice Simon
Case No: B3/2014/2418/PTA
Robert Whittock (instructed by The Associate Law Firm) for the Appellant
Niall Maclean (instructed by DWF LLP) for the Respondent
Hearing date: 24 May 2016
Approved Judgment
The question in this case is whether the judge – Mr Recorder Hollington QC – was wrong to decide that the claimant, Darren Scott, was wholly responsible for the accident that occurred when he ran across the road into the path of an oncoming moped driven by Nicholas Gavigan, the defendant. The claimant appeals to this court with the leave of Fulford and Richards LLJ that leave being confined to the judge's decision on liability. He does not have permission to appeal the judge's findings of fact.
The facts
The facts as found by the judge are within a relatively short compass. On Sunday 13 July 2008 the defendant was riding his 125cc Honda motorbike along Valley Road, Lambeth, London. It was dusk but the street lights were on. It was dry and visibility was good. The defendant was travelling in a broadly northerly direction. The claimant, whose birthday it was, was walking towards a pub to have a drink with his friends and listen to a band. He was on the pavement on the opposite side of the road to that on which the defendant was travelling, walking in a southerly direction.
The place where the accident happened is shown on the photograph attached to this judgment. The accident occurred as the defendant approached what the judge described as an informal pedestrian crossing. This consisted of two bollards in the middle of the road each on a small raised kerbed island with a gap in between the two islands for stopping half way across the road. On each nearside of the road just before the crossing there were speed bumps. There were hatched road markings in the middle of the road before and after the bollards to warn approaching motorists of their existence. There were also ramps leading down from the pavement to the road with paving stones with raised spots to assist pedestrians with disabilities or parents with buggies.
The road is long and straight and has a 30 mph speed limit. There is predominantly housing and commercial property along its entire length, with pavements for pedestrians. At the time of the accident there were cars parked along the nearside of the road along which the defendant was travelling. There were no cars parked on the other side of the road on the pavement along which the claimant was walking before he crossed the road.
The claimant remembered walking towards the scene of the accident. But he had no recollection of the accident itself and could, therefore, give no explanation of it, or say where he crossed the road. He denied being drunk but was confronted with medical records which indicated that in about 2006 he had a drink problem. The judge was not persuaded that he was a reliable witness. By contrast he found the defendant to be a reliable witness and he accepted his evidence as to how the accident happened.
The defendant was a learner driver with a provisional licence which allowed him to ride bikes up to 125 cc. He had no previous convictions. He was travelling, so he said, at about 30 mph in 3 rd gear. The accident happened at the location shown in the photograph. The impact between the moped and the claimant occurred at the spot marked "X1", being about, or a little over, 10 metres from the southernmost bollard. The defendant first saw the claimant in the act of crossing the road when he, the defendant, was about 20 meters away from the first bollard. The claimant ran across the road when he was about 10 metres from the defendant and ran towards him. The defendant tried to swerve to avoid the claimant but ended up clipping his trailing leg. The claimant ended up at the spot to the nearside marked "X2" and the defendant, who came off his moped, ended up at "X3". The claimant suffered a significant injury to his lower right leg which required a skin graft.
The defendant accepted that he had not braked on his approach to the pedestrian crossing. The claimant ran out before the defendant would have braked in order to navigate over the bumps. He did, however, brake when he saw the claimant and tried to avoid him, as well as sounding his horn. The collision sent the claimant into the air but the main injury that he suffered was the damage to his calf as a result of the initial impact with the moped.
The judge held that at that point in the road an ordinary prudent motorcyclist would have been travelling at a slower speed than 30 mph. The defendant should have been braking earlier so as to be travelling at no more than 20 mph by the time that he first saw the claimant in the act of crossing the road.
The judge also held that on the balance of probabilities the collision would not have occurred had Mr Gavigan's speed been 20 mph and not 30 mph.
As to the claimant, the evidence of Mrs Adrianova, who was called as a witness for him, was that he was " very drunk". The defendant's evidence was to the same effect. The judge found that the claimant had drunk significantly more than he admitted (which was one can of lager at lunch and one at supper) such that his ability to take care of himself and other road users was significantly impaired. He thought he could cross the road at the point at which he did so safely without looking carefully or at all to his left because he thought he could stop and look left in the middle before completing his crossing. In his alcohol induced state he probably thought he was much closer to the bollards than he was. He did not look carefully to the left and ran into the path of an oncoming motorcyclist who was much nearer to the centre of the road than the claimant had calculated when he started crossing. Even if the defendant had been travelling at 20 mph he would have had to take emergency evasive action so as not to crash into the claimant. In all probability he would have missed him but it was a real possibility that he would still have crashed himself.
The judge's conclusions
The judge concluded that it was the claimant who was entirely to blame for the accident. The fact that the defendant should have braked earlier was the limit of his negligence. The judge was not satisfied that he was travelling in excess of the speed limit. The risk of the claimant crossing the road at least 10 metres away from the crossing was not one that he should reasonably have foreseen. The claimant's responsibility was far greater than that of the defendant given his gross carelessness fuelled by excessive consumption of alcohol and the fact that his actions in crossing the road were of equal damage to the defendant as they were to himself. The police notes recorded that in the immediate aftermath of the accident the claimant had admitted that the accident was his fault which, the judge found, supported his conclusion that he was, indeed, entirely to blame. The claimant's own reckless behaviour was the sole and effective cause of the accident. This was a case where " the conduct of the claimant is so wholly unreasonable and/or of such overwhelming impact that that conduct eclipses the defendant's wrongdoing and constitutes a novus actus interveniens": Clerk & Lindsell on Torts (20 th ed) para 2 – 119 or, as the defendant put it in the skeleton argument, " [the claimant] was entirely the author of his own misfortune".
The claimant's submissions
Foreseeability
Mr Robert Whittock on behalf of the claimant submits that the judge was in error. He rightly found (a) that the defendant should have been travelling at 20 mph; (b) that it was negligent of him to be travelling at a greater speed; and (c) that if he had been travelling at 20 mph he would have missed the claimant. But he was wrong to find that the risk that presented itself to the defendant was not a risk that he should reasonably have foreseen.
Mr Whittock referred to a passage in Clerk & Lindsell which reads:
"Again failure to anticipate carelessness on the part of others is regarded as carelessness in itself ( Lang v LTE [1959] 1 WLR 1168. Foskett v Mistry [1984] RTR). In a well known passage Lord Uthwatt said:
"[1] dissent from the view that drivers are entitled to drive on the assumption that other users of the road, whether drivers or pedestrians will behave with reasonable care. It is common experience that many do not. A driver is not, of course bound to anticipate folly in all its forms, but he is not entitled to put out of consideration the teachings of experience as to the form those follies commonly take".
In the present case, he submits, it was entirely foreseeable that a pedestrian might attempt to cross the road where the claimant did. The fact that the claimant had passed the informal pedestrian crossing did not mean that his doing so was not foreseeable since people may well cross the road in the vicinity of a crossing. Accordingly the judge ought to have made a finding apportioning liability.
The defendant's evidence was that he could see the claimant from roughly 500 metres away; at that time the claimant was in line with the bollards – the spot is marked by the higher "X" on the right hand side of the photograph. He was doing nothing out of the ordinary, simply walking along the pavement. He did not, however, stop at the bollards but continued walking on. The defendant assumed that the claimant did not want to cross the road. Then, when the claimant was about 10 metres away from the...
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