Court of appeal recognise counsel of perfection point in bus operator case

24 Jan 2013

In the case of Paramasivan v Wicks 2013 The Court of Appeal followed the earlier case of Ahanonu v South East London and Kent Bus Co Ltd 2008. 

In the Ahanonu case the court decided that a judge's conclusion that a bus driver had been negligent when his bus collided with a pedestrian was flawed as his finding that the driver should have been checking his rear-view mirror, which formed the basis of his decision, imposed upon the driver a counsel of perfection and ignored the reality of the situation.  This was an important decision for bus operators.
In Paramasivan, the defendant had been driving his car at dusk on a July evening. The road had one lane in either direction. Ahead of him to his right, across the northbound lane, a layby or parking space and a paved area, was a small parade of shops. The Claimant, who was a 13-year-old boy, had been in a group of seven to eight boys of similar age congregating outside the shops. Suddenly, and without warning, he threw an ice-cream at a friend and then ran across the paved area and parking bay, between parked cars and across the northbound carriageway into the front offside of the defendant's car.

The boy suffered injury and claimed damages from the driver.  At the first trial the driver's evidence was that he had not noticed the group outside the shop or seen the boy until the impact. One of the boy's friends gave evidence that the boy had been looking back over his shoulder as he ran across the road. The judge decided that the driver ought to have seen the group outside the shop. He found that the boy had been running at a speed of 3.6 metres per second when he was hit, and that the driver had been driving at 25 mph when he struck the boy, which was too fast in the circumstances. The judge considered that the driver ought to have been driving at 15 mph once he had seen the group, and that at a speed of 25 mph he had had no time to stop, whereas if he had been driving at 15 mph, he would just have been able to. The judge held that the driver was therefore liable, but that the boy was obviously contributorily negligent, and he apportioned liability between them at 50 per cent each.

On appeal the Court of Appeal decided that the first judge's conclusion that the boy had been running at 3.6 metres per second was well within the range of possible findings available to him, and there was no reason for the Appeal Court to interfere with it. The judge's finding that the driver should have seen the group of boys and slowed to 15 mph was not a finding of primary fact with which the court could not interfere; rather, it was a judgment of what was reasonable or unreasonable for the driver to have done. The judge's conclusion was unrealistic and a counsel of perfection. The group had been quite a way from the lane in which the defendant was driving, separated by a pavement, parking bay and the northbound carriageway, and there was nothing to suggest that they were about to leave that safe area and run across the road. The boys were not small infants running indiscriminately, and had provided no reason to require every driver passing by to reduce his speed to as low as 15 mph. There was a danger in the liberal use of hindsight, and a pedestrian's safety was not guaranteed, Ahanonu v South East London and Kent Bus Co Ltd 2008 followed.
In the circumstances, there was nothing wrong with W driving at 25 mph.

The judge's apportionment of liability equally could not stand. The boy was 13, but old enough to understand roads. He had created the hazard by doing something entirely unexpected and careless. The drivers only fault had been failing to respond as he should have done in the briefest of moments. In those circumstances, the boy was 75 per cent contributorily negligent and the driver's liability was 25 per cent.

This is an important endorsement of the Ahanonu case and recognises the need not to fall into the trap of judging driver's with the benefit of hindsight.  The decision will be an important one for Bus Operators and others faced with the spectre of repeat motor claims cases to bear in mind.