Practice and Procedure

ADJEI v KING (2003)

PUBLISHED March 19, 2003

The Judge had erred in concluding that a pedestrian was killed because the defendant coach driver had been driving too fast, however liability was established, subject to contributory negligence, on the basis that he should have avoided the accident.Appeal by the defendant ('K') from the decision of Fulford J dated 2 December 2002 finding K liable for a road traffic accident that lead to the death of the claimant's husband ('C'). K was a coach driver and was travelling south along the A5 at West Hendon Broadway, London, NW9. C was a pedestrian and was struck by K's vehicle as he attempted to cross the carriageway. The judge had the benefit of witness statements from a number of people, however he only had the evidence of one eye witness ('H'). H was the driver of a vehicle who had been travelling alongside K leading up to the accident. It was her evidence that she pulled away from a set of traffic lights and, as she approached a second set of lights, noticed C attempting to cross. H stopped and looked behind because she was aware that K was coming from behind her in the nearside bus lane. H's evidence was effectively that K failed to see C until the moment of impact. The judge also had evidence from an experienced accident investigator who, after taking measurements in relation to skids, the positions of the coach and C after the collision and the damage to the coach, concluded that K was travelling at 25 mph when he began to skid. The speed limit on the road was 30 mph. The judge concluded that the weight of the evidence established that K was simply driving too fast, and accordingly found liability on that basis. The judge did not therefore go on to consider the claimant's other grounds of claim, namely that even had K been driving within the speed limit he was negligent by failing to avoid the collision. K appealed from the judge's finding of liability on the grounds that the evidence did not support a finding of excessive speed, or alternatively that the judge should have made a finding of contributory negligence.HELD: (1) Leaving aside the evidence of K in relation to the speed of the coach, the judge was left with just the evidence of H and the accident investigator. H did not in terms say that K was driving at an excessive speed, in fact her evidence was not consistent with the coach travelling fast since it was behind her by some distance after pulling away from the first set of traffic lights. There was no suggestion that H was driving excessively. (2) The judge rejected the finding as to speed put forward by the accident investigator because he did not consider that the core evidence was realistically susceptible to a formulae approach. However, the investigator took a number of measurements, consideration of which lead him to conclude that the coach was travelling at 25 mph. (3) The judge's finding as to speed was not open to him on the evidence. It was based on considerations of the effect and inferences to be drawn from other witnesses. (4) However, the overall evidence did establish a finding of negligence notwithstanding the fact that K was not driving too fast. C was in the road when H passed him and she clearly formed the view that a crisis was imminent since she stopped and turned around. An appropriate action by K was to have slowed down or give some form of warning to C. (5) That finding of liability was however subject to contributory negligence. Given the clear visibility, the nature of the road and traffic conditions at the time of the accident, the conduct of C amounted to contributory negligence in the proportion of 40 per cent. C conducted himself in a manner that was inconsistent with reasonable regard for his own safety. (6) Accordingly, to the extent that negligence was apportioned as 60 per cent on K and 40 per cent on C, the appeal was allowed.Appeal allowed to the extent indicated.