Howell-Williams v Richards Brothers & Anor

A motorist’s failure to reduce speed when approaching a stationary school bus may be a legally relevant and direct cause of injury to a child emerging from behind the bus. It is immaterial that the child’s time of entering the road would have been unchanged: the proper counterfactual considers the vehicle’s position and the additional time available to the child. Where a trial judge has carefully assessed the relative fault of negligent defendants and the apportionment is properly open on the findings, the Court of Appeal will not interfere merely because another allocation could be argued.

A five-year-old child alighted from a school minibus stopped on the opposite side of the road from a childminder’s house and was struck by a car. Following a trial in Swansea County Court, the bus operator and the motorist were found liable in negligence, with responsibility apportioned two-thirds to the bus operator and one-third to the motorist. The claim against the childminder was dismissed.

The motorist appealed against liability and apportionment. The bus operator cross-appealed, seeking an equal apportionment. The central issues were whether the motorist’s excessive speed was causally relevant and whether the apportionment should be altered.

Richards LJ gave the principal judgment. Longmore LJ and Laws LJ agreed.

1. Disposition. The motorist’s appeal and the bus operator’s cross-appeal were dismissed.
2. Duty and causation. The findings that the motorist approached the bus at just under 40 miles per hour, knew or ought to have known that it was a school bus, and ought to have slowed down were not challenged. The judge was entitled to infer that driving at the required substantially lower speed would have placed the car materially farther from the child when she emerged and would have given her sufficient additional time to reach safety. The fact that the child’s movement was unaffected by the car’s speed did not defeat causation.
3. The accident was directly causally related to the breach of duty. It was not a matter of sheer coincidence of the kind discussed by Lord Walker in Chester v Afshar [2004] UKHL 41; [2005] 1 AC 134. Reaction-time calculations were unnecessary because they did not form part of the judge’s reasoning. Moore v Poyner [1975] RTR 124 concerned the scope of duty in circumstances where the driver was not alerted to a particular danger. It was correctly distinguished from a case involving an obvious danger created by a stationary school bus.
4. Apportionment. Greater fault lay with the bus operator, which had created the dangerous situation. However, the findings also involved substantial fault by the motorist. The trial judge was well placed to assess the relative responsibility of both defendants, and the two-thirds/one-third apportionment was properly open to him. The Court of Appeal would not interfere.

Order: appeal dismissed. The cross-appeal was also dismissed.

• Court of Appeal (Civil Division): The motorist’s appeal and the bus operator’s cross-appeal were dismissed: [2008] EWCA Civ 1108.
• Swansea County Court: HHJ Vosper QC found the bus operator and motorist liable in negligence, apportioned responsibility two-thirds to the bus operator and one-third to the motorist, and dismissed the claim against the childminder.