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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Barry v Wynn [2001] EWCA Civ 710 (11 May 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/710.html Cite as: [2001] EWCA Civ 710

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(MR RECORDER PATRICK TALBOT QC)

		Royal Courts of Justice Strand London WC2 Friday, 11th May 2001

Friday, 11th May 2001

1. LORD JUSTICE SIMON BROWN: This is the defendant's appeal against the order of Mr Recorder Talbot QC made in the Central London County Court on 28th November 2000 giving judgment for the respondent claimant on the issue of liability in a road traffic accident case subject to a finding of two-thirds contributory negligence.
2. The primary facts can be comparatively briefly stated. The claim arose out of a road accident in Yarnton Way, Thamesmead at about 1.00 pm on 8th January 1996. The respondent was then an eleven and a half year old schoolboy. He and a friend of the same age, Christopher Wright, had just got off a double-decker Leyland Olympia bus which had stopped to let them off at a request stop. The doors are at the front and middle of the bus. The boys got off at the front. Yarnton Way is a dual carriageway subject to a 30 mph speed limit. The bus stop is not recessed so that the bus draws alongside side the kerb and thereby occupies the bulk of the left-hand lane.
3. As the boys got off the bus, the appellant was driving his seven-and-a-half tonne Ford Cargo lorry in the same direction as the bus and in the right-hand lane so as to overtake it. Some hundred yards back he had seen that the bus was going to stop and so had moved into the right-hand lane. Yarnton Way at this point is described as a slight left-hand bend in the direction of travel. The appellant was driving at 25 mph. There were no other vehicles in the vicinity. The weather was fine and the road dry.
4. Having paused for some three seconds on the footway around the front nearside of the bus, the respondent with his friend close behind suddenly tried to run across the road straight ahead of the stationary bus precisely at the moment when the appellant's lorry was about to overtake it. The appellant first saw the respondent when the front of the lorry was only some two or three feet short of the front of the bus, and he immediately then slammed on his brakes. It was of course by then too late and the respondent ran into the front nearside of the lorry suffering, alas, grievous injuries. Christopher Wright ran off to alert staff at a nearby school.
5. The boys had been intent on crossing the road to go to a row of shops on the other side of the dual carriageway. There is no pedestrian crossing within few 50 metres or more of this stop. The bus driver, Mr Darby, had noticed the overtaking lorry and watched in horror as the boys ran into the road. The bus doors were still open, and he shouted out to them something like "mind the effing road". It seems unlikely they heard.
6. The respondent had lived in the vicinity for some 14 years and knew the road well. He was an experienced professional driver with a clean driving record. His only previous accident had involved a tyre blow-out and no other vehicle.
7. Although it will be necessary to return later to the facts for certain further details, it is convenient at this stage to indicate on what basis the respondent contended for liability to be found against the appellant, the contention which ultimately the recorder came to accept. It was not, let it be made clear, on account of the appellant's speed. Twenty-five mph was accepted to have been a perfectly proper speed at which to be overtaking the stationary bus. Indeed, the evidence was that the lorry's speed would have had to have been as little as 7 mph for the collision to have been avoided. Only at that speed could the appellant have stopped in time when the respondent suddenly emerged from the offside front corner of the bus.
8. The two essential limbs of the respondent's claim in negligence against the appellant lorry driver as eventually formulated were, first, that the appellant could and should have seen the boys standing on the pavement beside the bus just after they had alighted; second, that having done so, the appellant should have anticipated the possibility of the respondent then running out in front of the bus and should therefore have sounded his horn. That was the case which the recorder came to accept.
9. The appellant challenges it at both stages. First, he argues that on the primary evidence accepted by the recorder there was in fact no opportunity for him to have seen the boys; secondly, he submits that even if he could and should have seen the boys when they first got off the bus, there was in reality no more than a mere possibility that some three seconds later the boys would run across the road in front of the bus, and such a danger not being one reasonably apparent, he was under no duty to sound his horn.
10. In granting permission to appeal, Hale LJ regarded both grounds as arguable and observed that "it is arguable that the judge's finding is tantamount to an obligation always to sound the horn when passing a bus at a bus stop".
11. Before considering the arguments let me next set out the recorder's central findings on liability. Having first found that the appellant "did have an opportunity to glance towards the bus stop and... failed to take it" (a finding which is not challenged on this appeal), the recorder continued as follows:

"But the next question is one which I have found most difficult to answer. Did Mr Wynn [the appellant] have an opportunity, when all the facts are looked at, driving along the road at 25 miles an hour and gaining on the bus, when glancing towards the bus-stop, to see the boys on the pavement during the short time they were there? I find on the basis of the evidence of Mr Darby about the time the boys were on the pavement and Mr Wynn's own evidence about approaching the bus, that there was just enough time for Mr Wynn to have noticed the boys on the pavement almost when they were on the move towards the front of the bus, and to have then considered whether he ought to take any preventative action to prevent them crossing the road.

In these circumstances I find that there was a reasonably apparent possibility, which Mr Wynn should have anticipated, of the boys crossing the road or running across the road in front of the bus and continuing across the road into the right-hand lane of the carriageway in front of his lorry.

In the circumstances I find that the only possible preventative action for Mr Wynn to take was to have sounded his horn in the expectation that the boys would stop moving or would not move across his way at all. In my judgment he acted negligently in failing to do so. He ought to have considered the possibility of the boys crossing the road and to have sounded his horn."

12. The first main issue on the appeal is accordingly this: was the recorder entitled to find on the evidence that "there was just enough time for [the appellant] to have noticed the boys on the pavement". The critical findings of fact in this regard are that the boys remained on the pavement for no more than "3 seconds or so", having alighted at the front door of the bus, and then remained close to its front nearside; it then took the respondent a further second to run to the point of impact (that fact is agreed); the appellant was overtaking in the offside lane at a speed of 25 miles an hour (36 and two-thirds feet per second), and, as stated, there is at this point a left-hand bend in the road. On these facts and with the assistance of the scale plan, I have to say that it seems to me unlikely, to put it at its lowest, that the appellant would have been able to see the boys on the pavement even when they first alighted from the bus. The appellant would at that moment have been some 45 metres back from the front of the bus, and having regard to the angle of sight available to him through being in the offside lane on this left-hand bend, the body of the bus would I think have cut off his view to the footway at its immediate front nearside.
13. It furthermore seems to me that on Mr Darby's evidence the finding that the boys were on the pavement for as long as three seconds or so was as favourable to the respondent as it could possibly be. Mr Darby said, amongst other things, that on the bus the boys had been "lively and were eager to go somewhere", that they had got off the bus "lively", that "there was a slight pause as they spoke to one another and they both then ran in front of me", meaning by a slight pause "a couple of seconds which was enough time to say something like 'come on' or 'let's go'", and that "the boys were on the move, you know continuously going".
14. The respondent's friend, Christopher Wright, had said in a statement to the police immediately after this accident "Me and Robert were on the bus. We only went one stop, we were going to the shops. When the bus stopped, Robert said 'come on let's go' and he ran off the bus and round the front of it and straight into the road. Then the lorry hit him. I ran back to the school to tell the teachers. Robert didn't look before he crossed the road."
15. Putting the evidence therefore at its very highest from the respondent's point of view, there may or perhaps more probably may not have been a moment when, had the appellant been looking along the nearside of the bus as it stopped, he could just have seen the boys immediately after they alighted before his view was cut off by the bus itself. On this hypothesis, of course, the boys would then have remained three seconds or so on the pavement before darting out into the road, three seconds during which perhaps an overtaking driver, even had he seen the boys and contemplated initially that they might run out, would have become reassured that they would not.
16. Let me come to the second main issue. Even assuming the appellant could and should have seen the boys just after they got off the bus, should he have regarded the risk of their, three seconds or so later, running across the front of the bus as a reasonably apparent possibility and sounded his horn? The phrase "reasonably apparent possibility" is one that the Recorder took from the Court of Appeal decision in Moore v Poyner [1975] RTR 127. There is, as it happens, a rough approximation between the facts of that case and those here. In Moore v Poyner the defendant had been driving his car at 30 mph, the speed limit, past a 30-foot coach parked along the nearside kerb which was obscuring a three-foot pathway leading at right angles to the nearside pavement, itself just over six feet wide. The defendant was familiar with the area and aware that children played in the vicinity. The plaintiff, a six year old boy ran from the pathway, across the pavement, in front of the coach, straight into the path of the defendant's overtaking car which had not slowed down or sounded its horn.
17. The trial judge found for the plaintiff on the basis that the defendant should have reduced his speed or sounded his horn. The Court of Appeal allowed the defendant's appeal. Buckley LJ giving the leading judgment in the Court of Appeal cited first at page 132 from Lord Uthwatt's speech in London Passenger Transport Board v Upson [1949] AC 155, 173:

"I desire only to register my dissent from the view expressed by the Master of the Rolls 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, in my opinion, entitled to put out of consideration the teachings of experience as to the form those follies commonly take."

18. Buckley LJ then cited from Lord Dunedin's speech in Fardon v Harcourt-Rivington (1932) 146 LT 391, 392, a passage cited by Lord Du Parcq in Upson:

'"If the possibility of the danger emerging is reasonably apparent, then to take no precautions is negligence; but if the possibility of danger emerging is only a mere possibility which would never occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinary precautions."'

19. Buckley LJ then continued:

"Taking those two passages together, I think one can formulate the appropriate test in the present case in these terms: would it have been apparent to a reasonable man, armed with commonsense and experience of the way that pedestrians, particularly children, are likely to behave in the circumstances such as were known to the defendant to exist in the present case, that there was a possibility of a danger emerging, to avoid which he should slow down or sound his horn, or both?

... I think that one must test his duty of care not by reference to what the plaintiff actually did but by what sort of conduct by any child, at any moment of time, the defendant ought reasonably to have anticipated, and to consider what course of action he would have had to take if he was going to make quite certain that no accident would occur.

... It seems to me that this is a case in which there was an appreciable risk that a child might be masked by the coach and that he might run into the path of the defendant's car; but the likelihood of that happening at the precise moment at which he was passing the coach was so slight that it is not a matter which the defendant ought to have considered to require him to slow down to the extent that I have indicated. [This defendant would have had to slow from 5 mph to have avoided the impact]...

With regard to the sounding of his horn, of course with hindsight one can see that it would have been better if the defendant had sounded his horn; but the question is whether it was a precaution that he ought to have realised that he ought to take and here again for my part I think the judge's decision places too heavy a burden on a driver in circumstances such as these. It is not, I expect, very useful to try to compare this case with other cases in which the facts would be different; but one must remember that drivers driving in traffic are constantly exposed to the danger of pedestrians stepping out in the front of vehicles standing at the side of the road, and if in fact there was a duty on a driver to sound his horn whenever that risk existed, there would not be very much peace in the streets of London or, I daresay, Birmingham either."

20. I need not cite from the other judgments.
21. The recorder in the present case, having made the finding (which I have already quoted) that the appellant should have sounded his horn, said this:

"This is not to be interpreted as a finding that drivers approaching a stationary bus should always sound their horn in case children run in front of the bus since then obviously, in my judgment, would be to impose far too high a standard on drivers; but I make this finding specifically on the facts of this case alone, taking into account, as I am bound to do, the detail of knowledge that Mr Wynn had of the area over a long period of time and the way in which children use the road at the bus-stop very close to the point of impact and cross the road towards the shops."

22. The reference there to the appellant's knowledge of "the way in which children use the road at the bus-stop", needs comment. If the judge there was suggesting that the appellant knew that boys were wont to run across the road in front of the bus, there was no evidence to justify such a finding. On the contrary, the judge had expressly accepted the appellant's evidence "that he knew that children got on and off the bus at the bus stop and that normally passengers at that stop waited to cross the road until after the bus had pulled out". The appellant had certainly said nothing to suggest that he had ever seen boys at this bus stop do what the respondent and his friend did on this occasion, namely not merely not wait until after the bus had pulled out, but run across the front rather than the back of it.
23. Mr Shay in his succinct and helpful submissions contends that assuming always of course that the appellant should have seen the boys at the stop when they alighted, he should then have realised that there was a real possibility that they might indeed cross the road in front of the bus. This, he submits, is because the appellant would know that there was no other reason for the boys to get off the bus at this stop than to cross the roadway to the sweet shop on the other side, something which, he submits, they may well be tempted to do all too hurriedly and carelessly. Ably though the submission was made, in my judgment it cannot properly found liability here. Indeed, although of course the facts of this case are in certain respects different from those in Moore v Poyner, I have reached the conclusion that in principle the two cases are indistinguishable.
24. In my judgment it was simply not open to the recorder here to find the risk of the boys running out in front of the bus, as they did, a "reasonable apparent possibility" which required the appellant to have sounded his horn, and that would be my view irrespective of whether the appellant could and should have seen the boys fleetingly three seconds earlier on the pavement beside the bus. In my judgment the recorder placed altogether too high a burden upon this appellant, and he cannot realistically be criticised for the way he drove his lorry on the occasion of this tragic accident.
25. It follows that, sympathetic though inevitably one is to any seriously injured boy like this respondent, I would acquit the appellant of having driven negligently. In the result, I would allow the appeal and set aside the recorder's finding on liability and enter judgment in the action for the appellant/defendant.
26. LORD JUSTICE KEENE: I agree.
27. LORD JUSTICE LONGMORE: I agree also.
(Appeal allowed; judgment for defendant; section 11 order)