George v Stagecoach South East London & Anor

Permission to appeal will ordinarily be refused where proposed grounds challenge pure findings of fact reached by a first-instance judge who heard the evidence, unless there is a real prospect of demonstrating error. A reasonably competent driver negotiating a difficult turn must maintain a proper lookout in all directions; attention to one particular hazard does not reduce that standard. Where the evidence supports a finding that a pedestrian was visible and could have been seen, the Court of Appeal will not substitute its own assessment. Apportionment of contributory negligence is pre-eminently a matter for the trial judge and will not be disturbed absent a real prospect of error.

A pedestrian was struck by a double-decker bus turning into a narrow side street. The High Court found that the bus driver had failed to keep a proper lookout and was negligent. It apportioned responsibility 60 per cent to the defendants and 40 per cent to the claimant.

The defendants sought permission to appeal, arguing that the judge had imposed an unrealistic standard on the driver, had made unsupported factual findings, and had apportioned responsibility incorrectly. Permission was refused on paper and renewed before the Court of Appeal. The central issue was whether the proposed challenges had a real prospect of success.

Lord Justice May dismissed the renewed application for permission to appeal.

1. Findings of fact. The proposed appeal principally challenged findings of fact. Such challenges are extremely difficult because the first-instance judge saw and heard the evidence and was best placed to assess it. The Court of Appeal would not intervene where the judge had sufficient evidential material to reach the conclusion under challenge.
2. Standard of care. The judge was entitled to find that the claimant was visible, had walked approximately halfway across the road, and could have been seen by the driver. A reasonably competent driver negotiating the difficult left turn was required to keep looking in all directions. The need to avoid the northern kerb did not justify concentrating attention on that hazard alone or reduce the standard to a counsel of perfection. The judge was entitled to rely particularly on the evidence of Mr Morris and Mrs Hayes, and to find that the driver had failed to keep a proper lookout. The claimant, being in the road, was also entitled to precedence under paragraph 146 of the Highway Code.
3. Contributory negligence and apportionment. The judge had properly considered the claimant’s failure to ensure her safety before crossing, to maintain a lookout, and to appreciate the bus’s turning movement. His conclusion that she was 40 per cent responsible, leaving 60 per cent responsibility with the driver and defendants, was pre-eminently a matter for him. The Court of Appeal identified no real prospect of successfully challenging that apportionment.

Order: application for permission to appeal dismissed.

• Court of Appeal (Civil Division): On 26 June 2001, Lord Justice May dismissed the renewed application for permission to appeal.
• High Court of Justice, Queen’s Bench Division: On 3 April 2001, His Honour Judge Heppel QC found the bus driver negligent and apportioned responsibility 60 per cent to the defendants and 40 per cent to the claimant.