Case No: B3/2003/0862
Neutral Citation No [2003] EWCA Civ 1819
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BARNSLEY COUNTY COURT
(Mr Recorder Goose QC)
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Tuesday 16 December 2003
Before :

THE VICE-CHANCELLOR
LORD JUSTICE WALLER
and 
LORD JUSTICE SEDLEY

- - - - - - - - - - - - - - - - - - - - -
Between :

	FRANK GREEN	Claimant/
Respondent	
	- and -		
	MICHELLE BANNISTER	Defendant/
Appellant	

- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -

Michael Redfern QC and Richard Norton (instructed by Peace Revitt) for the Respondent
Douglas Herbert (instructed by Beachcroft Wansbroughs) for the Appellant

- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Sedley : 

1.	On the night of Sunday 28 February 1999 the appellant Michelle Bannister, who lived with her parents in a residential cul-de-sac, West Street, Wombwell, was telephoned by her parents and asked to come and pick them up from the High Street in her father's Vauxhall Cavalier. She went out to the car, which was parked at the kerb in herring-bone fashion alongside the neighbours' cars, and reversed it towards Bartholomew Street, looking over her right shoulder to ensure that she stayed clear of the parked cars to her offside.

2.	About 35 yards along the road, as she manoeuvred past a shrubbery bed near the mouth of the road, her rear nearside wheel ran over Frank Green, the son of the next-door neighbours, who not long before had returned extremely drunk, had collapsed in the roadway and had remained there in a stupor.

3.	Miss Bannister got out and found Mr Green motionless between the car's front and rear wheels. She got her grandfather, who also lived in the cul-de-sac, to call the emergency services. Then she returned to the car and, in a moment of panic, drove it forward, dragging Mr Green four or five feet. Although this was initially pleaded as a separate cause of action, it was treated at trial as part of the main cause of action, possibly because most if not all of the serious damage had been done by the initial impact. The damage was so severe that it has left Mr Green confined to a wheelchair with tetraparesis.

4.	At the trial of Mr Green's negligence action against Miss Bannister, Mr Recorder Goose QC on 2 April 2003 found that she had not been negligent in electing to reverse down and out of the cul-de-sac, but that she had failed to keep an adequate lookout by looking over her left shoulder or in her nearside wing or rearview mirror. Had she done so, he found that she would probably have seen and so been able to avoid Mr Green. He found Mr Green, however, partly to blame for his own misfortune, and apportioned liability 60 per cent to him and 40 per cent to Miss Bannister.

5.	With the permission of this court (Peter Gibson LJ and Sir Martin Nourse) given on 13 June 2003 following refusal on the papers by Kay LJ, Miss Bannister now appeals against the finding of liability and, in the alternative, the apportionment of contributory negligence. The latter has not been argued before us, but ought nevertheless to be briefly mentioned.

Contributory negligence

6.	If Miss Bannister was at fault at all, the apportionment of 60 per cent of the total blame to Mr Green on the facts I have outlined cannot be impugned. The recorder accepted that the driver of a car has a far greater power than a pedestrian to cause injury, but pointed out that it was Mr Green's voluntary intoxication which had created the danger and that Miss Bannister had been reversing slowly down a quiet road, albeit without keeping as full a lookout as she should have done. 

7.	If this apportionment were vulnerable at all on appeal, the reasoning of this court in Eagle v Chambers [2003] EWCA Civ 1107 suggests that it might be because it was over-generous to the appellant. But in the absence of a cross-appeal on this aspect of the case, it is necessary to say no more than that the recorder's decision that Mr Green was the more blameworthy of the two in a ratio of 6 to 4 was by no means unfair to Miss Bannister once she had been held negligent. The real questions are whether she ought to have been held to be negligent at all and, if so, whether her negligence was causative of the accident.

Was the defendant negligent?

8.	The respondent does not seek to upset the recorder's finding that Miss Bannister, who had passed her driving test seven months earlier, was not negligent in failing to execute a three- or four-point turn in order to drive forwards out of West Street. The next question is therefore whether she exercised sufficient care in reversing down a constricted and ill-lit street late at night.

9.	This was a manoeuvre the appellant had carried out regularly since learning to drive. The recorder found that she had checked her mirrors before starting the engine and reversing out but that she did not from then on use either the wing or rear-view mirrors. Instead - as she herself had said in her evidence in chief - she kept a steady lookout over her right shoulder in order to navigate by the line of parked cars on her offside. As she came to the mouth of the road she adjusted her course to clear the raised shrubbery bed which narrowed the carriageway on her nearside, and it was there that her rear nearside wheel ran over the inert Mr Green.

10.	In accepting that it was open to Miss Bannister without negligence to reverse the car down the road, the recorder added the corollary that "it did require a high degree of care in watching what was behind when reversing as much as 35 feet or more". The logic of this is obvious. Slow-moving pedestrians are only one example of what might have entered her path. It followed, in the recorder's judgment, that Miss Bannister's failure to look over her left shoulder or to use any of her mirrors during the manoeuvre was negligent.

11.	What is now said on Miss Bannister's behalf is that the standard of care which the recorder applied to her driving was not that of an ordinarily prudent motorist but a standard of perfection. Once he had found, as he did, that it was not negligent to reverse out of the cul-de-sac, her counsel Mr Herbert submits that there was no reason for her to anticipate an inert pedestrian or anything remotely similar in her reversing path.

Causation

12.	The recorder went on to hold that that but for her failure to look in her nearside mirror the defendant would have seen Mr Green and have been able to stop - in other words, that the negligence was causative of the accident. It is submitted by Mr Herbert that the evidence did not entitle the recorder to reach this conclusion: it disclosed no good reason to suppose that Miss Bannister would have seen Mr Green if she had looked in her nearside mirror, the more so since she was not asked about it in cross-examination.

13.	Particular reliance is placed on the recorder's omission of any reference to the evidence that the only street lighting in the cul-de-sac section of West Road was a single sodium lamp and that Mr Green was probably lying in a pool of shadow. But this is distinctly two-edged. If anything it emphasises the need for great care if one is reversing down such a street at night without the benefit of headlamps.

14.	It is true, however, that the primary case put to Miss Bannister by Mr Green's counsel was pitched on the ultimately unsuccessful proposition that she should not have been reversing at all. It was suggested to her accordingly that one of the reasons for not reversing down the street was - precisely - that you had to keep looking over your right shoulder and could not check your nearside. It was not right, her counsel now submits, to convict her of negligence on the opposite premise - that she was doing nothing wrong in choosing to reverse down the road.

15.	The claim as pleaded, however, did include an allegation that Miss Bannister had "failed to observe the claimant by the use of her mirrors as she began her reversing manoeuvre". It did not allege a continuing failure to do so; but it did lastly allege that that she had "caused the claimant's injuries when by the exercise of reasonable driving skill and care she could and should have avoided the same". Without objection, Mr Green's case was put in his skeleton argument at trial in this way: "The Defendant could have seen the Claimant as she reversed. Even if she could not see him through the rear window, she ought to have seen him in her nearside rear view mirror."  The defendant's skeleton argument simply said: "It will be a matter for determination by Trial Judge as to visibility of Claimant to Defendant and as to the appropriate standards for a competent and careful car driver."

16.	I do not think the defendant was ambushed. Given the pleadings and skeleton arguments, it was open to her counsel, just as it was to the claimant's, to broach the question whether, had she used her nearside wing mirror, she would have seen Mr Green. If in the event the judge was left to decide this without Miss Bannister's testimony, it was testimony which could have carried little if any weight. What would have been more to the point was a simple piece of reconstruction of the sort which road traffic experts are constantly doing - more often than not on unverifiable premises - in road accident cases. Here, for once, all the data were known, but nobody gave evidence to the recorder as to whether an object the size of a man, lying in the mouth of the road and clad in a light-coloured or white top, was visible in the lamplight of West Road to the driver of a slowly reversing Cavalier if the driver either used the nearside wing or rearview mirror or looked back over his or her left shoulder.  

17.	The specialist police officer, Mr Logan, who attended the scene of the accident and took video film and measurements, was asked principally about the wisdom and feasibility of executing a three- or four-point turn to get out of West Road. But he was also asked in cross-examination by counsel for Mr Green, apparently on the basis of his general knowledge, whether a driver reversing the Cavalier could have seen Mr Green in the roadway. Although his witness statement had expressed the opinion (and he was not giving expert evidence) that a driver executing Miss Bannister's manoeuvre would have been unlikely to see a person lying in the roadway, the upshot of his oral answers was that there would have been a moment, as the car emerged from its parked position, when Mr Green was visible in the offside wing mirror; then, as the car came closer to him, in the nearside wing mirror. In re-examination Mr Logan confirmed this, though he also assented to a leading question suggesting that this would have been "just before the impact position".

18.	In her witness statement Miss Bannister described a reconstruction which had been attempted by the police, using one officer's feet as a marker. Miss Bannister, on request, had reversed the Cavalier and had indicated when his feet came into view; but when the other officer, Mr Stephenson, was called at trial he could no longer find the measurements that had been taken. Nobody, it seems, had taken the trouble to ascertain in advance what his potentially crucial evidence was going to be.

19.	In these circumstances the recorder had to do his best to draw the relevant inferences from such evidence as he had. Although he did not refer to it, he had  evidence that Mr Green had been lying close to the nearest street-lamp and that he was wearing a light-coloured or white top. With or without Mr Logan's evidence he was entitled to take judicial notice that (as the Highway Code reminds drivers) there is a blind spot immediately behind a car, but that the mirrors give vision at some distance directly to the rear. And the Highway Code stresses the need to be alive to the risk of unseen people or objects when you are reversing. 

20.	Against this, Mr Herbert contends that the evidence of Mr Logan foreclosed the recorder's finding (in paragraph 24 of the judgment) that by looking in her nearside mirror the defendant could have seen the claimant in sufficient time to stop. Relying on the leading case of Glasgow Corporation v Muir [1943] AC 448, he submits that what happened - encountering an inert drunk in the roadway - was simply not within reasonable contemplation.

Conclusions

21.	Each side has asserted in argument before us that it was for the other side to prove or, as the case might be, negative causation. On the present facts this is a sterile argument. Once it was open to the recorder to find, as he did, that by looking more circumspectly behind her Miss Bannister would probably have seen Mr Green in the road in time to stop, it followed that her failure to do so was both negligent and causative of the accident. Mr Green's own role in creating the risk then went to determine the extent of his contributory negligence.

22.	In my judgment it was open to the recorder to conclude (a) that the care needed in travelling down this street in reverse gear at night called for particular attention to what might be in the car's path; (b) that Miss Bannister, once she had straightened out and was travelling towards the mouth of the road, ought therefore to have checked in her nearside wing mirror as well as over her right shoulder; and (c) that had she done so she would more probably than not have seen Mr Green lying in the light of the street lamp near the mouth of the road in time to stop.

23.	I can readily understand Miss Bannister's sense that, even so, what happened was far more a case of bad luck than of bad judgment. But while it is true that the way in which Mr Green came to be in the road was hardly to be anticipated, the possibility that someone might be in the car's reversing path was real, and it is the latter which matters in the law of negligence.

24.	For my part, therefore, while recognising that this was in no sense a reckless piece of driving, I do not consider that the recorder's conclusions on negligence and causation are in any way flawed. I would dismiss this appeal.

Lord Justice Waller :
25.	I agree.

The Vice-Chancellor :
26.	I also agree.
Order: Appeal dismissed. Agreed minute of order was supplied to the court.
(Order does not form part of the approved judgment)