Adjei v King

An appellate court may reassess the effect and inferences arising from witness and expert evidence where a trial finding is not open on the evidence. That is distinct from reversing a finding based on the trial judge’s assessment of witness credibility or impression. A driver may be negligent in failing to slow, warn or manoeuvre when a pedestrian is visibly in the carriageway, even where excessive speed is not established. A pedestrian’s failure to take reasonable care for his own safety is contributory negligence if it contributes to the injury. Apportionment depends on causation and blameworthiness. Equal opportunities to avoid a collision do not require equal responsibility, since the positions of a motorist and pedestrian differ.

Victoria Adjei, as administratrix of Henry Adjei’s estate, claimed damages from Richard King following a fatal collision between King’s coach and the deceased pedestrian. The evidence included witness statements admitted under the Civil Evidence Act, eyewitness evidence and accident-investigation evidence.

Fulford J held King wholly liable and ordered judgment for the claimant on liability, with damages to be assessed. King appealed, challenging the finding that he had been driving excessively fast. The respondent obtained leave to rely on other pleaded allegations of negligence. The central issues were whether negligence could be established on that evidence, whether the deceased was contributorily negligent, and how liability should be apportioned.

Appeal allowed in part. Lord Justice Pill delivered the judgment, with Lord Justices Chadwick and Longmore agreeing. The finding that the defendant was wholly liable was replaced by an apportionment of 60 per cent liability to the driver and 40 per cent contributory negligence to the deceased.

1. Speed and appellate fact-finding. The trial judge’s finding that the coach was travelling at a wholly excessive speed was not open on the evidence. The finding depended on the effect and inferences arising from witness evidence and the accident-investigator’s conventional analysis of the skid mark, resting positions, vehicle damage and injuries. It did not involve reversing a primary finding based on the judge’s impression of witnesses. In the interests of justice, and since neither party sought a retrial, the Court of Appeal was entitled to consider the evidence and make its own findings, while respecting the trial judge’s adverse credibility findings concerning the defendant.
2. Driver’s negligence. The evidence supported a finding that the pedestrian was already a considerable distance into the road and was moving unpredictably. In those circumstances, appropriate action by the driver included slowing down, giving a warning by horn, or taking another suitable manoeuvre. The failure to take such action amounted to negligence, even though excessive approach speed was not established as the cause of the collision.
3. Contributory negligence. The road was straight and clear, with adequate visibility. The deceased’s presence in the carriageway and conduct immediately before impact showed a failure to take reasonable care for his own safety, which causatively contributed to the collision. Applying the principle in Nance v British Columbia Electric Railway [1951] AC 601, contributory negligence did not depend on any duty owed by the deceased to the defendant.
4. Apportionment. The Court applied the principle in Baker v Willoughby [1970] AC at 484 that causation and blameworthiness must be considered. Equal opportunity to avoid the collision did not establish equal blameworthiness, because the positions of a motorist and pedestrian differed. The driver therefore bore the greater share of responsibility, assessed at 60 per cent.

Costs were ordered against the claimant. A section 11 order was made, with any contribution from the claimant left to the costs judge, and the respondent’s costs were subject to legal aid assessment.

• Court of Appeal (Civil Division): In Adjei v King, [2003] EWCA Civ 414, the appeal was allowed to the extent that the finding of sole liability was replaced by a 60/40 apportionment.
• High Court, Queen’s Bench Division: Fulford J, on 2 December 2002, held the defendant wholly responsible for the accident and ordered judgment for the claimant on liability, with damages to be assessed.