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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 >> Sutherland v Ballard [2002] EWCA Civ 768 (15 May 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/768.html Cite as: [2002] EWCA Civ 768

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IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM COLCHESTER COUNTY COURT
(His Honour Judge Darroch)

		The Royal Courts of Justice The Strand London Wednesday 15 May 2002

Wednesday 15 May 2002

1. LORD JUSTICE LATHAM: This is an application for permission to appeal a decision of His Honour Judge Darroch given on 7 February 2002. He dismissed a claim by the claimant for damages for personal injuries arising out of a serious road traffic accident which occurred on 9 January 1998, in which he unhappily suffered not only significant head injuries but also damage to his leg which resulted in it being amputated.
2. The accident itself took place at about 11.30 pm on a straight stretch of road along which the defendant was driving his taxi. On the defendant's near side there was a pavement and walking towards him along that pavement were a number of young people, divided, it would appear, into three groups. The applicant was in the rear group. He was wearing dark clothing. He had undoubtedly been drinking, but there was nothing to suggest that he was drunk in common parlance. At some point one of the members of the leading group called to him, as a result of which he stepped into the road to go to the leading group, passing, as he would, the middle group. The evidence before the judge from one of the middle group was that she shouted to him, "Lee, get out of the road", and there was evidence from one of the leading group that he tried to grab hold of the applicant to pull him off the road, and indeed had hold of him at the time of impact - because, unhappily, what happened was that the defendant's car struck the applicant and threw him against some railings which were alongside the pavement.
3. The damage to the car was to the nearside front corner and to the nearside of the front windscreen. The evidence of marks on the road indicated that the defendant had been driving not far from the centre of the road at the time of the impact itself. Expert evidence called by both the applicant and by the defendant suggested that the speed of the defendant was somewhere between 47 and 55 miles per hour. The speed limit was 50 and the judge concluded that the defendant's account that he was driving at or about the speed limit was to be accepted.
4. The question therefore which the judge had to determine was whether or not the defendant could and should have seen the applicant step out into the road, and therefore into his path, in time to be able to pull to his offside and thereby avoid the applicant. It has been accepted that there was no oncoming traffic which could have prevented him from carrying out such a manoeuvre. The evidence of the witnesses did not identify, as one might imagine, with any clarity exactly how long it was between the time that the applicant stepped out into the road and the time of the impact. Various estimates were given.
5. Mr Brooke-Smith, on behalf of the applicant, both before the judge and before us indicated that the most helpful approach would be to take the uncontroverted, as he said, pieces of evidence together and apply common sense, the uncontroverted pieces of evidence being that the applicant had in fact had to step out into the road itself and then walk or jog past the middle group to the front group, if the evidence as to the girl in the middle group's shouting to him and the young man in the front group's evidence as to grabbing him were to be accepted. He submitted that there was no reason for the judge to doubt either piece of evidence and that, taking that series of events together, must have meant that the applicant was in the road for a sufficient period of time for the defendant to have seen him and to have taken avoiding action.
6. The evidence of the defendant was that, as far as he was concerned, the applicant seemed simply to step out in front of him, giving him no opportunity to take any steps at all. One of the passengers in the car also described it all as having happened in a split second. The judge quite rightly considered that that evidence was not in itself helpful as to precisely how long the applicant had been in a position which would have alerted the defendant to the need to take action. Considering the evidence as best he could, he came to the conclusion that the period of time in which the applicant was in such a position was one and a half to two and a half seconds. In those circumstances he concluded that the applicant had not established that that period of time was sufficiently long for the defendant driver to be able to take evasive action. He said, "I think that the very worst that can be said about Mr Ballard is that his reaction might just have been half a second or a split second too slow." Mr Brook-Smith submits that on the evidence as I have described it the judge clearly misdirected himself in coming to the conclusion that he did. On that evidence he could not properly have been of the view that the applicant had not given the defendant sufficient time to see him as he stepped out.
7. I have no doubt that, as the single Lord Justice indicated when he refused permission on paper, it may be that the decision of the judge was indeed one which was kind, if one can put it that way, to the defendant. But it does not seem to me to fall outside the ambit of the reasonable decisions to which a judge could come on the material that was before him so as to justify my saying that there is any real prospect that this court would interfere.
8. It seems to me accordingly that this application must be refused.
9. MR JUSTICE HART: I agree.
ORDER: Application refused