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IN THE SUPREME COURT OF JUDICATURE 97/1669/C

COURT OF APPEAL (CIVIL DIVISION )

(MR J MITTING QC )

Royal Courts of Justice

Strand

London WC2

Tuesday, 7th September 1995

B e f o r e :

LORD JUSTICE ROCH

LORD JUSTICE SWINTON THOMAS

-and-

LORD JUSTICE ALDOUS

- - - - - - - -

MARK JOSEPH NORRIS

Plaintiff/Appellant

(suing by his next friend Winfred Norris)

- v -

JULIAN TENNANT-SMITH

Defendant/Respondent

- - - - - - - -

(Computer Aided Transcript of the Stenograph Notes of

John Larking, Chancery House, Chancery Lane, London WC2

Telephone No: 071-404 7464

Official Shorthand Writers to the Court)

- - - - - - - -

MR D WESTCOTT (instructed by Stone King, Bath BA1 2HJ) appeared on behalf of the Appellant.

MR M ROBERTS (instructed by Wansbrough Willey Hargrave, London WC2B 5HA) appeared on behalf of the Respondent.

- - - - - - - -

J U D G M E N T

(as approved)

- - - - - - - -

Crown copyright

LORD JUSTICE ROCH: I will ask Swinton Thomas LJ to give the first judgment.

LORD JUSTICE SWINTON THOMAS: This is an appeal from a judgment of Mr John Mitting QC, sitting as a Deputy High Court Judge on 20th November 1997, when he dismissed the Plaintiff's claim for damages.

The action arose out of a road traffic accident which occurred in the early hours of the morning: about half past midnight on 3rd January 1993, in Holland Road, London W14, near the junction with Lower Addison Gardens, when a Ford Escort motorcar, being driven by the Defendant, Mr Julian Tenant-Smith, struck the Plaintiff, Mr Mark Joseph Norris, who was a pedestrian crossing the road. In the accident the Plaintiff sustained very serious injuries, including an injury to the head as a result of which he himself had no recollection of the accident.

We have been provided with plans and photographs of the relevant section of the road which illustrate the site of this accident very clearly and plainly. The Defendant was driving his car with his girlfriend, Mrs Setty, as a passenger from north to south along Holland Road. Mr Norris was intending to cross the road from the east pavement to the west. It is clear that Mr Norris had been drinking and was probably substantially under the influence of alcohol. That is not a matter of criticism. A man is perfectly entitled to drink on Saturday night, but the amount that he had to drink may well explain the manner in which he set out to cross the road. Alas drink is all too often the cause of an accident such as this one.

On the left side of Holland Road, in the direction in which the Defendant was travelling, there was a line of parked cars, including a car with the registration number G212 FOO. At the time it was, of course, dark and the weather conditions that night were poor.

When he made a statement to the police after the accident, and in the evidence that he gave at the trial, the Defendant said that the Plaintiff had stepped out into the road from between two parked cars into the path of his oncoming car. In that account he was supported by his passenger, Miss Setty, and by an independent witness, Mr Bruce. Mr Bruce was driving another vehicle behind that being driven by the Defendant. The distance between the Defendant's car and Mr Bruce's car was a matter of dispute as to which a quite substantial body of evidence was given.

The judge said, in relation to those three witnesses, this:

"Each of them have impressed me as honest and truthful witnesses, doing their best to recall accurately what occurred. The evidence of each of them is broadly consistent with what they have said before, and with the evidence of each other."

Mr Westcott, on behalf of the Appellant, submits that the judge was wrong to make that finding, particularly in the case of Mr Bruce, and he submits that there was so many demonstrable errors in the evidence given to the judge by Mr Bruce that the judge ought not to have accepted his evidence.

In so far as the Defendant and the two witnesses described the Plaintiff as coming out from between two parked cars, the judge came to the conclusion that they were mistaken in relation to that part of their evidence because it was wholly inconsistent with the position in which the Plaintiff was found lying in the road close to the car that I have referred to with the registration number G212 FOO and there was no other parked car behind that car when the police arrived on the scene.

In the circumstances of this case when everything inevitably happened very quickly, and bearing in mind that it was dark at the time, although there was street lighting, it does not seem to me to be altogether surprising that those witnesses thought that the Plaintiff had come out into the road from between the two cars, but were mistaken about that aspect of this accident.

The judge had to come to a conclusion as to whether negligence was established against the Defendant on the basis that the Plaintiff had walked out into the road, into the path of the Defendant's oncoming car, but not from a position between two parked cars but from a position to the north of the parked car, to which I have referred, that is to say on the Defendant's side of the parked cars, which would, of course, have given him a greater visibility of a pedestrian crossing the road.

In his evidence to the judge the Defendant said that the period of time that had elapsed between him first seeing the Plaintiff and the time of the collision was, as best as he could judge it, about a second. In the statement which he made to the police on 6th January 1993, Mr Tennant-Smith said this:

"I first saw the pedestrian as he emerged from between two parked cars on my left side. He was looking straight ahead, perhaps looking at the ground and he walked out oblivious of the traffic. From the moment I saw him I was braking. He seemed to remain unaware of the traffic the whole time. It quickly became clear that I would have to swerve to the right to avoid him. I don't know how far I swerved, but I know that if I had gone straight ahead he would have hit the middle of the bonnet. He continued to walk, onto the vehicle."

In the evidence that he gave to the judge the Defendant was asked this question:

"Q. Were there cars coming in the opposite direction?

A. Yes. There was light coming from the traffic in the opposite direction."

Then a little lower down G:

"Q. Can you tell us, after you had gone through the traffic lights at Lower Addison Gardens, what was the next thing that you saw?

A. The first thing I saw of the pedestrian was as he emerged between the parked vehicles. I am fairly sure that he was already moving at that point, and he just walked straight out between the parked vehicles.

Q. What did you do?

A. Obviously on first seeing the pedestrian I would have been prepared to brake. On seeing that he walked out I immediately braked and also swerved to try and avoid him.

Q. What happened next?

A. Well, because I had swerved and almost avoided him completely, he just caught literally two inches, say, of the wing. That hit his leg. He then fell and it was unfortunate in a way he fell forward, I guess, on to the car and made a second impact into the windscreen, which was very brief, and then he was sort of rolled off to the edge of the car."

Then a little further on:

"Q. Can you tell us about how long it was between the time that you first saw the Plaintiff and the time of the collision?

A. I would say about a second.

Q. About a second?

A. Yes."

When he was cross-examined by Mr Westcott, Mr Westcott elicited from him that he had given a number of different estimates of the distance that he was from the Plaintiff when he first saw him. However, the Defendant stressed that it all happened extremely quickly and he said that the Plaintiff was looking straight ahead when he came out on to the road with his head down and not looking to the left or the right. The Defendant did not say (no doubt because he was not asked) what speed the Plaintiff was walking, but the general impression given in the statement he made was that he was walking normally.

Mr David Bruce was an independent witness. He was travelling along Holland Road behind the Defendant's car. He also made a statement to the police fairly shortly after the accident in which he said this:

"I saw the driver approx 50 yds in front of me with rear lamps on pass through green traffic lights. Suddenly I saw a person walk out between parked cars to the right and without looking or hesitating walk straight into the road. It was only a split second for the driver in front to take action. He braked and swerved to try and avoid the person, but he kept walking and was hit, flew up over the bonnet, and then into the road. On stopping to see if I could help I saw the person's face down and smelt a strong smell of alcohol."

At the end of the statement that he made to the police there is this question asked:

"In your opinion who was to blame for this accident? Give your reasons briefly.

Pedestrian was clearly to blame. At the time

I thought he was drunk."

Mr Bruce gave evidence to the judge. On page 17 of the transcript he was asked this question:

"Q. Can you tell us what you saw after Mr Tenant-Smith's car passed the junction with Lower Addison Gardens?

A. Yes. Well, after he had passed the junction I was approaching the junction. The lights were still green. I could see on the left-hand side somebody standing between the parked cars and just suddenly walked out into the road without looking. It happened extremely quickly and I could not believe what I saw, because I had never seen anything quite so fast and deliberate.

Q. You saw this person walking out into the road. What did you see next?

A. I could then see Mr Tennant-Smith - the car in front - had no time to stop. I saw the brake lights illuminate. I saw Mr Norris hit by the car. I cannot remember if he flew up into the air or if he did move up, and I cannot remember if he came over the car or not but he ended up in the road. I managed to stop luckily without hitting Mr Norris. I managed to bring the car to a halt just before Mr Norris' body."

That was Mr Bruce's short account of what he saw and it is of importance that Mr Bruce, in relation to the manner in which the Plaintiff came out into the road, said that he had never seen anything quite so fast and deliberate.

Mr Bruce was cross-examined by Mr Westcott about his estimates of distance and what he was able to see and again, perhaps not altogether surprisingly, Mr Westcott was able to show that Mr Bruce had made different estimates of the distances between his car and the Defendant's car and between the Defendant's car and the Plaintiff when he, Mr Bruce, first saw the Plaintiff.

However, in the course of the cross-examination at page 26 Mr Bruce said this:

"Well, I do not believe that Mr Tenant-Smith had any time to react, or very little time to react."

Miss Setty, the passenger in the Defendant's car, also made a statement to the police and gave evidence, and I will have to return, in the context of Mr Westcott's submissions, to her evidence in a minute or two.

Mr Cooper is a consultant engineer who gave evidence on behalf of the Plaintiff. He visited the site of the accident on 14th February 1996. He gave the judge, based on his expertise, various distances and measurements, including the important measurement that the width of the southbound lane of Holland Road is 5.6 metres. He made an estimate that the Plaintiff may have been struck when he was about 4 metres from his nearside curve, that is to say the curve from which he had stepped out. He said that a normal walking speed is 1.5 metres per second. It is absolutely central to Mr Westcott's submissions in this case that the Plaintiff was not walking at that speed, but was walking considerably more slowly. Mr Westcott submits that he was walking probably at a speed of about 1 metre per second, or slightly more than that, and for that proposition he places reliance on the statement that was made by Miss Setty.

Mr Cooper said that he thought that Mr Norris was probably beyond the centre of the southbound lane when he was hit. He dealt with the speed of the Defendant's car, to which there was no great dispute, as at about 25 to 30 miles an hour. He dealt with reaction times and stopping distances. He came to the conclusion that if the Defendant had reacted as soon as he could when the Plaintiff stepped off the kerb, then, in those circumstances, the Defendant could have stopped his car, or alternatively brought it down to a very slow speed before the accident happened.

There is no doubt that in theory that might be correct, but in a case such as this there are many considerations. A driver, in my judgment, cannot necessarily be expected to see somebody immediately he steps off the kerb if he is not excepting that to happen, particularly when it is dark. Of course a driver must keep a proper look out, including a proper look out for pedestrians who may step off the pavement. But there are other things as well that he has to concentrate on, including traffic coming towards him, traffic coming behind him, traffic from side turnings and all sorts of other matters.

A pedestrian stepping off the pavement on a busy London road unexpectedly and dangerously, as undoubtedly this Plaintiff did as Mr Westcott concedes, would not be the danger which would be uppermost in a motorist's thoughts. Having considered Mr Cooper's evidence, at some length in the judgment, the judge concluded that the Plaintiff would have covered the distance from the kerb to the nearside wing of the Defendant's car in about two seconds. That is a very short time in which to avoid an unexpected incident such as this. Mr Westcott readily and realistically concedes that that is correct, but he submits that in fact and in truth the period of time from the point when the Plaintiff left the kerb to the collision was substantially longer than that, in all probability some four seconds.

As I have said, the judge found that Mr Tennant-Smith, Miss Setty and Mr Bruce were honest and truthful witnesses and that is not a finding which Mr Westcott can easily set aside.

The judge summarised the evidence that he had heard and then reached his conclusions which are essentially on pages 8, 9 and 10 of the judgment. On page 8 the judge said:

"With one exception, the three eyewitnesses have consistently described the manner in which the Plaintiff walked into the road. Their description is consistent with, and supportive of, the Plaintiff adopting a normal walking pace. The exception is Miss Setty, who described the Plaintiff's gait as 'shuffling' in a witness statement given to the police. I accept her oral evidence that that word does not accurately describe either what he saw or what she intended to convey."

Mr Westcott submits that the judge ought not, in the light of the statement she had made to the police, have come to that conclusion. The judge then continued on page 9:

"The Defendant describes the Plaintiff's gait as unusual, his head was down and he was looking straight ahead, but said that he 'just walked out into the road.'

Mr Bruce, who had perhaps the best view of all, said he suddenly walked out across the road. I accept that evidence and find that the Plaintiff was walking into the road at a normal walking pace. He was 6' 3" and would not have been travelling at a speed less than 1.5 metres per second."

Again Mr Westcott submits that the judge should not on the evidence have reached that conclusion. The judge then continued:

"As I have already indicated, I accept the Defendant's account of what then happened. He applied the brakes and attempted to swerve right. His account was confirmed by Miss Setty and Mr Bruce. Despite taking that precaution, the extreme nearside edge of the front of his nearside wing caught the Plaintiff a heavy blow almost certainly to his left leg and caused his head to strike and smash into the windscreen.

The arithmetic as well as the eyewitness evidence suggests that the Defendant could have done little else at that stage. By the time he was able to brake the Plaintiff would have been at or very close to the outer edge of the parked cars. From that moment on a collision, in my judgment, was in reality unaviodable.

It is suggested that the Defendant should have sounded his horn, but accepted by Counsel for the Plaintiff that it would have been of no use at that stage. It could only have served any purpose if he had sounded it much earlier. That proposition begs the question of whether or not the Defendant could or should have appreciated much earlier than he did - when the Plaintiff was about a pace from the outer edge of the parked car - that he might create a situation to which he, the Defendant, must react. The difficulty for the Plaintiff is that there was no evidence upon which I could properly, or securely, find what happened before that time. He had been drinking. Both Miss Setty and Mr Bruce smelt alcohol on his breath as he lay on the ground. His behaviour, as described, is consistent with the impairment of perception by alcohol. Therefore I cannot assume that he would have behaved in a rational or predictable way before he stepped out. He may, so far as I know, have been standing behind the parked car. He may, it is true, have stepped off the kerb. I simply do not know. All I know is that his actions came as a surprise to two sober and honest drivers- the Defendant and Mr Bruce. The evidence of Mr Bruce, which I accept, is notable. He said this: 'I could not believe what I saw. I had never seen anything so fast and deliberate. I could then see the Defendant had no chance to stop.'.

I am satisfied on the balance of probabilities that the Plaintiff was not doing anything which should have alerted a normal and prudent driver to the possibility that he would commit the act of folly which he did, namely stepping out suddenly and without warning into the road, into the path of an oncoming car. The arithmetical calculations to which I have referred are consistent with that finding unless assumptions are made which are not established by the evidence; namely, first, that the Plaintiff was in sight of the Defendant while on the pavement; secondly, that the Defendant drove or swerved so far to the right as to move the point of collision well towards the centre of the road. For the reasons given, I am not satisfied as to the first of those propositions because there is no evidence to that effect, and as to second it seems to me unlikely that the Defendant did that because he did not lose control of his car and because his car finished well on its own side.

I am, therefore, satisfied on the balance of probability, that collision was not to any extent the fault of the Defendant. I therefore dismiss the claim."

Mr Westcott has criticised the judge's conclusions both in relation to reliability and in relation to the conclusions that he drew from the expert evidence that he had heard in relation to speed and distance. Mr Westcott has set out his submissions in his skeleton argument and he then expanded upon those submissions in his oral submissions to us with reference to the relevant passages in the transcript of the evidence. The Plaintiff's case in the skeleton argument is put concisely and, if I may say so, with great moderation. Mr Westcott readily admits that his client was himself to blame, but he also submits that to at least an extent it was shown that the Defendant was to blame for this accident. He sets out his contentions and then on page 4 of the skeleton argument he says this:

"The Appellant/Plaintiff makes two fundamental complaints.

1 had the Respondent/Defendant hooted his horn

when he ought to have appreciated that the Appellant/Plaintiff might create a danger on the road the Appellant/Plaintiff would have stopped and there would have been no accident;

2 had the Respondent/Defendant reacted appropriately in the management of his vehicle to the observation that he ought to have made of the Appellant/Plaintiff

a. he would have been able to stop before the

collision occurred; or

b. in any event, there would have been no more

than a minor accident."

The second of those two submissions was at the forefront of Mr Westcott's argument to us.

Mr Westcott made the concession, in the course of his submission, that unless his analysis of the speed at which the Plaintiff was crossing the road was correct, then the only point remaining for him to argue would be the one in relation to the Defendant's failure to sound his horn. He added to that that it was also fundamental to his submission that the collision occurred further out into the road than the judge found in his judgment. It seems to me that that concession was rightly and properly made because obviously if it is right that the Plaintiff was crossing the road at speed of about 1.5 metres per second then he would have reached the point of collision in something like 2.5 seconds and, at any rate, somewhere between 2 and 3 seconds which is obviously a very short period of time.

As I have indicated earlier, Mr Westcott places considerable reliance on the witness statement made by Miss Setty. The statement was made on 7th January 1993 and in that statement he says this:

"I wasn't looking at anything in particular, but I remember seeing a man on the road. He was shuffling, not walking, going forward, as if to cross the road. His head was down and his arms were down by his sides. He had a sort of bent-over posture. He was at the edge of two parked cars on the road and shuffling forward."

Mr Westcott submits that that is a clear indication by the witness that the Plaintiff was moving across the road slowly. There was, in the course of this morning, a certain amount of discussion as to what the word "shuffling" might mean. Be that as it may, she was asked about what she meant in evidence. At page 29 she said:

"A. I first noticed a guy between parked cars walking forward, and I remember it was not a very normal walk.

Q. What was abnormal about it as you recall it?

A. I read my statement and I said 'shuffling', but I do not mean a slow speed, just not normal. He was looking straight ahead, and his arms were by his side, and it is not what I would consider normal."

Then Mr Westcott in cross-examination at page 33 asked this question:

"When you were asked about this by the police officers what you described was somebody who was shuffling?

A. Yes.

Q. That is your word, is it not?

A. Yes.

Q. You did not just say shuffling, you said 'shuffling, not walking'.

A. I think my meaning was more he was not walking

as I would normally expect someone to walk."

It is a perfectly fair comment for Mr Westcott to make that the statement was made to the police at a very much earlier date than the lady gave evidence. Nonetheless, in my judgment the judge was perfectly entitled to accept her explanation that she gave in her evidence. Perhaps even more important that evidence did not stand alone because it is quite clear, to my mind, that on the totality of the evidence given by the other two eyewitnesses, namely Mr Tennant-Smith and Mr Bruce, they were both indicating to the judge that the Plaintiff was walking at a normal speed.

Mr Westcott then goes on to submit that the Defendant should have sounded his horn when he appreciated that there was a danger. That submission seems to me to be unrealistic. The Defendant was faced with an emergency which he had to deal with at speed and as a matter of urgency. The Defendant did, in my judgment, what any ordinary prudent motorist would do, namely to brake hard and to swerve to his right away from the direction in which the Plaintiff was coming. He could not reasonably, in my view, be expected to sound his horn as well.

Returning then to Mr Westcott's primary submission, which is to an extent based on the evidence of Mr Cooper, the judge again, in my view, was entitled to accept that the Plaintiff was crossing this road at a normal speed, that is to say at about 1.5 metres per second. If that finding cannot be disturbed then Mr Westcott concedes that on that main issue he must fail. It seems to me that the judge was wholly entitled to rely on and to accept the evidence that was given to him by the eyewitnesses. Despite the very able criticisms that are made by Mr Westcott of the evidence of Mr Bruce, the judge found that he was an honest and reliable witness who was doing his best to describe that incident as he saw it. As I have indicated, central to Mr Bruce's account was his statement when he said:

"... I could not believe what I saw, because I had never seen anything quite so fast and deliberate.

...

I could then see that [the Defendant]... had no time to stop."

Despite Mr Westcott's submissions, that, if accepted by a judge, is probably as telling a piece of evidence as one could find in a running-down action. The judge accepted the evidence and, in my view, he was entitled to do so.

In a case such as this where a man has received grievous injuries, inevitably one has very great sympathy with him, but in order to recover damages he must establish negligence against the Defendant. The judge found that he had failed to do so and it does not seem to me to be open to this Court to interfere with his findings of fact. For those reasons, I would dismiss this appeal.

LORD JUSTICE ROCH: I agree.

LORD JUSTICE ALDOUS: I also agree.

Order:

Appeal dismissed with costs;

section 18 costs order nisi;

legal aid taxation and appellant's

costs