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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 >> Smith v Co-Operative Group Ltd & Anor [2010] EWCA Civ 725 (25 June 2010) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2010/725.html Cite as: [2010] RTR 30, [2010] EWCA Civ 725

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
His Honour Judge Shaun Spencer Q.C.
[2009] EWHC 3077 (QB)

		Royal Courts of Justice Strand, London, WC2A 2LL
		25 June 2010

Lord Justice Moore-Bick :

1. On 24^th September 2005 in the early afternoon Joshua Smith, then aged 13, was delivering newspapers to houses in Cheadle Road, Tean, a relatively quiet single carriageway road in a lightly built-up area subject to a 30 mph speed restriction. Joshua was employed as a paper boy by the local branch of the Co-op and was riding a bicycle his parents had given him the previous Christmas. Since his round included houses on both sides of Cheadle Road, it was necessary for him to cross the road from time to time to make his deliveries.
2. Many of the houses in Cheadle Road are set back from the road within gardens bounded at the front and sides by fences or low walls. In the vicinity of No.77 there is a grass verge between the boundaries of the properties and the carriageway itself which is intersected by tarmac aprons enabling access by motor vehicles from the road into the driveways of the houses. At about 2.10 pm that afternoon Joshua was leaving the driveway of No.77 intending to make his way across the road to continue his round. Without looking, he cycled out across the road straight into the path of a DAF flat-bed lorry driven by the appellant, Mark Hammond. Mr. Hammond braked hard and swerved sharply, but failed to avoid a collision and Joshua was very severely injured as a result. The incident also had a severe effect on Mr. Hammond, who has suffered from post-traumatic stress disorder as a result.
3. Joshua brought proceedings against the first respondent, Co-operative Group Limited ("the Co-op"), as his employer for failing to take proper care to prevent him from suffering personal injury in the course of his employment and against Mr. Hammond for negligent driving. Mr. Hammond sought by way of counterclaim to recover damages from Joshua, and from the Co-op as his employer, for negligence in causing the accident which adversely affected his psychiatric health. Master Eyre directed that liability should be tried before quantum and in due course the matter came before His Honour Judge Shaun Spencer Q.C. sitting as a judge of the Queen's Bench Division.
4. The judge held that the accident had been caused by Mr. Hammond's negligence, but he also found that Joshua had been careless as well and was 60% to blame. He dismissed Mr. Hammond's counterclaim entirely because he was unable to accept that a person of Joshua's age would foresee physical injury to the driver of the lorry under those circumstances.
5. Mr. Hammond now appeals against the judge's finding that the accident was caused by negligence on his part and against the dismissal of his counterclaim.
6. It is necessary at this point to say a little more about the circumstances of the accident and the judge's findings. It was common ground that at the time the road was dry and the visibility good. There was little traffic and few parked vehicles. There was an issue between the parties about the speed at which Mr. Hammond had been travelling before he applied the brakes, but having considered the expert evidence the judge accepted Mr. Hammond's own evidence that he had been driving at about 30 mph.
7. The critical parts of the judge's findings are to be found in paragraphs 35 to 37 of the judgment. In paragraph 35 he referred to the following passages in his note of the evidence given by Mr. Hammond in cross-examination:

"When I first saw him he was looking at [sic] his left. I watched and observed. There was an element of doubt. Would he come out of the drive? That doubt caused me to ease off the accelerator in case I had to deal with an emergency. I could have beeped him, but I didn't think he was going to come out. I eased off so as to slow down in case he presented me and him with a dangerous situation. I expected he would wait and let me pass. I could have sounded the horn. At all times he was looking away. I assumed he would stop, but to do that he would have to see me. I didn't brake then because I didn't think he would come out. I started braking when he was halfway down the drive on the apron between the post and the road. That is when I jumped on the brakes."

"I accept that, given that he was looking in the opposite direction, that required great caution from me. I thought the cyclist was not paying attention."

8. The judge then continued as follows:

"36. I take the view that, compendiously, those replies amount to a plea of guilty to negligence. It establishes, first, that the second defendant saw the claimant approaching the carriageway on his, the second defendant's, nearside; second, the second defendant saw that the claimant had not seen him – that, I interpose, was clearly for want of a proper lookout on the claimant's part; third, he identified the claimant as a potential source of danger; fourth, he recognised that that required great caution on his part; fifth, on his account at trial he eased off the accelerator. Then, to conclude, he assumed that the claimant would stop. I interpose that this is notwithstanding he knew that the claimant had not seen him and, therefore, his assumption can only have been based on the proposition that the claimant would stop at the major road because people are supposed to stop at the major road.

37. So far as my findings are concerned, I find that the claimant, being in the position that he was to the knowledge of the second defendant, the second defendant in the first place could have sounded his horn, in the second place he should have sounded his horn and, in the third place, if he had done, that would have alerted the claimant to his approach . . . This is a situation of a cyclist approaching ahead on the nearside who, to his knowledge, had not seen him. The suggestion has been made (largely in the evidence it came from Dr. Searle) that sounding the horn would have done no good. I do not accept that. Dr. Searle suggests that research shows a reaction time of two seconds for the person hearing the horn. This is apparently based on some research using volunteers and machines. My own experience so far as driving is concerned is that one reacts pretty instantaneously to the shock of a horn going off, and a slow moving cycle would be able to stop quickly or make a sharp turn to the left quickly in order to avoid where the sound was coming from. If the second defendant had sounded his horn, as he could have done, at a time when the claimant was halfway across the pavement, there would have been, albeit only seconds, sufficient time for the claimant to stop or move to his left away from the approaching vehicle and away perhaps from the squeal of brakes. I am satisfied that the claimant could have done that and that he would have done that."

Use of the horn

9. It will be apparent from those two paragraphs that in the end the judge held Mr. Hammond liable only because he had failed to sound his horn at the appropriate time. The judge's note of his evidence reflects the fact that the case put to Mr. Hammond in cross-examination by Mr. Wilson-Smith Q.C. on behalf of Joshua was that he should have sounded his horn when he saw Joshua coming up the drive of No.77 Cheadle Road; and indeed Mr. Hammond accepted that he could have "beeped" him then. However, he explained that he did not do so because he did not think that Joshua would continue into the road without looking. In those circumstances I do not think it was right to say that Mr. Hammond's answers in cross-examination amounted to a plea of guilty to negligence and it is important to note that, when he came to make his findings on that question in paragraph 37, the judge did not find that he should have sounded his horn when he first saw Joshua coming up the drive. Rather, he found that Mr. Hammond should have sounded his horn when Joshua was halfway across the pavement, that is, halfway across the tarmac apron which runs from the boundary wall to the edge of the carriageway.
10. At this point it is convenient to consider the first of Mr. Hammond's grounds of appeal, which seeks to challenge the judge's finding in paragraph 38 that he realised that the cyclist was of a vulnerable age. The judge reached that conclusion because he considered that Mr. Hammond was aware that Joshua was riding a juvenile type of bicycle, that he was only 5'4" in height and that he was carrying a paperboy's delivery bag. The judge's finding was made in the course of reaching his decision on contributory negligence and did not form any part of his decision on liability. Nonetheless, Mr. Wilson-Smith sought to rely on it as providing further support for the judge's decision that Mr. Hammond had been negligent. However, Mr. Hammond had said in evidence that he did not realise that the person approaching the road up the drive of No.77 Cheadle Road was a boy and Mr. Jeffreys Q.C. submitted that, having accepted his evidence on all other matters, the judge ought to have accepted it on that issue as well.
11. Mr. Hammond was obviously an impressive witness, but the judge was not bound to accept his evidence on that question if there was other evidence that could properly support the finding he made. As he said, Joshua's bicycle was not an adult model and Joshua himself was carrying a paperboy's delivery bag. On the other hand, as Mr. Jeffreys pointed out, Mr. Hammond could not observe either of those things until Joshua emerged from the gates to No.77. Until then his view was partly obstructed by the fence which separates No.77 from the neighbouring property. The tarmac apron was about 4 metres wide, so when Joshua, who was moving at about 2 metres per second, came into full view it was only about a second before he was halfway across it. Unfortunately, the judge did not make it clear at what point Mr. Hammond must have got the impression that the cyclist was young. For the reasons I have given I do not think that the evidence is capable of supporting a finding that he did so before Joshua emerged from the drive; but a finding that he became aware of the fact after he had emerged onto the tarmac apron has little bearing on the question now under consideration, given that the judge did not hold that Mr. Hammond should have sounded his horn until Joshua was halfway to the road.
12. Mr. Jeffreys submitted that it is asking too much to expect a driver faced with an emergency of the kind that confronted Mr. Hammond to sound his horn while engaged in emergency braking, swerving in an attempt to avoid a collision and at the same time doing his best to maintain control of his vehicle. In my view there is much force in that submission. Although the courts are entitled to expect all road users to exercise a degree of care commensurate with the dangers involved, the standard to be applied remains that of the reasonably prudent motorist, or in this case the reasonably prudent lorry driver. The court is not entitled to impose a higher standard amounting to a counsel of perfection. For my own part I am unable to accept that in failing to sound his horn at the same time as he was engaged in extreme efforts to avoid a collision Mr. Hammond was negligent.
13. Mr. Wilson-Smith implicitly recognised the force of that argument, because his principal submission, which reflected his case at trial, was that Mr. Hammond should have sounded his horn as soon as he saw Joshua coming up the drive towards the road looking in the other direction. The difficulty I have with that submission, however, is that it fails to recognise the developing nature of the situation. Mr. Hammond agreed in cross-examination that he could have sounded his horn at that point (he could hardly have done otherwise), but at that stage the chances of Joshua's continuing into the road without stopping or looking his way appeared, quite reasonably, to be fairly slim. The prudent motorist can be expected to respond to a potentially dangerous situation in a manner that is proportionate to the stages of its development, that is, in proportion to the degree of danger that is, or should reasonably be, apparent to him as the situation unfolds. That was how Mr. Hammond responded in this case. When he saw Joshua in the drive of No.77 Cheadle Road he foresaw the possibility that he might cycle into the road without looking and took his foot off the accelerator to reduce his speed. He thus took the first step towards dealing with a potentially serious danger. At that stage, however, the risk seemed remote and the danger did not appear to be great. There was no reason to sound his horn at that stage and the judge did not hold otherwise.

Causation

14. For that reason Mr. Jeffreys' main challenge was to the judge's finding that if Mr. Hammond had sounded his horn when Joshua was halfway across the tarmac apron the accident would not have happened. The tarmac apron was four metres wide, so by the time Joshua had reached the halfway point he was only two metres from the edge of the road. There was evidence from Dr Searle, which was not seriously challenged, that even if Mr. Hammond had taken steps to sound his horn at that point the accident was already inevitable, because the overall time required for Mr. Hammond to sound the horn and for Joshua to react to it would have been about three to four seconds, by which time Joshua would already have been part way across the road and into the path of the lorry. The judge, however, rejected that evidence, preferring to rely on his own experience of reacting to the sound of a horn when driving.
15. In my view the judge was wrong to reject Dr. Searle's evidence. He was not bound to accept it, of course, if he had good grounds for not doing so, but if he was going to reject it he should have given reasons for doing so other than simply saying that it did not accord with his own experience. It is tempting for judges when dealing with matters of everyday experience to regard their own perceptions and experience as more reliable than the opinions of those who seek to describe such matters in scientific terms, but the temptation should be resisted, if only because the layman's perception of matters of this kind may be well wide of the mark. The layman may think that he reacts to something instantaneously, but the scientist may be able to demonstrate that he does not.
16. In my view there were no satisfactory grounds for rejecting the evidence of Dr. Searle on this question, but if the judge did reject it, he was not entitled to resort to his own experience to provide a basis for a different finding. There would then have been no evidence capable of supporting a finding that Mr. Hammond's failure to sound his horn caused the accident. In those circumstances it is not surprising that Mr. Wilson-Smith was unable to argue with any conviction that the judge's finding on causation should be upheld.

Speed

17. Mr. Wilson-Smith did submit, however, that once he had seen Joshua in the drive of No.77 Mr. Hammond was negligent in failing to reduce his speed sufficiently to avoid an accident . The lorry's speed was, of course, an issue at the trial, but it is apparent from the transcript of Mr. Hammond's cross-examination and from the judgment itself that the only question was whether he had been driving at about 30 mph before he applied the brakes, as he said, or at about 36 mph, as the claimant's expert, Dr. Ashton, suggested. It was not part of the case put to Mr. Hammond in cross-examination that he should have slowed down to whatever extent was necessary to avoid an accident and the judge made no findings in relation to a case of that kind. In my view it would not be proper for this court to embark on a consideration of such a question when it was not pursued at trial. Accordingly, I am unable to accept that the judge's decision can be upheld on that alternative basis.
18. For those reasons I would allow Mr. Hammond's appeal on the issue of liability and set aside the judgment against him.

The counterclaim

19. The judge dealt with the counterclaim very briefly in paragraph 56 of his judgment. Having referred to a passage in the speech of Lord Lloyd of Berwick in Page v Smith [1996] AC 155, in which his Lordship said that in cases where the claimant seeks to recover for psychiatric harm it is enough that the defendant should reasonably have foreseen that the claimant might suffer physical injury as a result of his negligence in order to bring him within the range of the defendant's duty of care, he said:

"56 . . . . I factor into the reasonable foresight ingredient the fact that the claimant was just 13. I am sorry to express my conclusions shortly, but I can see no other way of doing it. I just cannot see that someone of that age would foresee that if he cycles into the road and is hit by a lorry that he could foresee physical injury to the lorry driver."

20. Mr. Jeffreys submitted that by confining the enquiry to the risk of physical injury to the lorry driver the judge asked himself the wrong question. Since Joshua had ridden directly across the road without any regard to what might be approaching from his right, he should have asked himself whether a boy of his age should reasonably have foreseen injury to another road user of any kind, including a cyclist or motorcyclist. It would be obvious to a boy of 13, he submitted, that if either of them had been approaching, the risk of causing personal injury to the rider by cycling across the road without warning would have been great. Even in the case of a car, lorry or van he would have realised that the driver might brake violently, swerve or skid, collide with other vehicles or a stationary object and suffer injury as a result.
21. In my view these submissions are well-founded and Mr. Wilson-Smith did not feel able to put forward any submissions to the contrary. The judge found that Joshua was substantially to blame for the accident and it is inherent in that finding that he was careless both of his own safety and that of Mr. Hammond. Since, for the reasons given earlier, Mr. Hammond was not to blame for the accident, his counterclaim must succeed in full.
22. For these reasons I would allow the appeal, set aside the judgment against Mr. Hammond and enter judgment for him on the counterclaim for damages to be assessed. In those circumstances I am pleased to note that at the trial the Co-op agreed that if Mr. Hammond's counterclaim were to succeed it would accept liability as Joshua's employer and would not seek to recover any part of the damages from Joshua himself.

Lord Justice Wilson:

23. I agree.

Lord Justice Moses:

24. I also agree.