Osei-Antwi v South East London & Kent Bus Company Ltd

Contributory negligence requires an identifiable act or omission that caused or contributed to the accident. A pedestrian standing in a designated pedestrian area, several inches from the road, is not contributorily negligent merely because a bus is approaching a tight turn and the pedestrian does not move further back, where there is no warning that the bus will encroach. An appellate court may interfere with an apportionment of blame where the trial judge’s reasoning discloses no sufficient factual basis. The court left open whether Chapman v Post Office establishes any absolute rule concerning pedestrians standing near a kerb.

The appellant was struck and injured by the rear of a bus turning into a depot. The trial judge found the bus company negligent but held the appellant one third contributorily negligent. The appellant appealed that finding. The respondent’s primary case at trial was that she had been standing in the road, although a secondary case concerned her proximity to the kerb and failure to keep a lookout. The central issue was whether the judge had a proper basis for finding contributory negligence after finding that she was standing on the pavement.

Appeal allowed. The finding that the appellant was one third contributorily negligent was quashed.

1. The Court recognised the usual reluctance to interfere with a trial judge’s apportionment of blame. This was an appropriate case for intervention because the reasoning was brief and did not identify a sufficient basis for attributing blame.
2. The material findings were that the appellant stood on a studded pedestrian area of the pavement, several inches from the road, partly sheltered by railings. Buses were not normally expected to cross that area. The front and middle of the bus passed safely, and the danger arose only when the rear swung onto the pavement as the turn ended.
3. On those facts, the appellant was not in an obviously dangerous position and was keeping a proper lookout to the extent that she knew the bus was approaching. She was not obliged to move further back merely because she knew the bus would make a tight turn. There was no earlier indication that the bus driver had misjudged the angle.
4. The case had principally been pleaded and conducted on the issue whether the appellant was in the road or on the pavement. The alleged failure to keep a lookout and take evasive action while standing on the pavement had not been explored in detail in cross-examination. It therefore provided no proper basis for the finding.
5. The court declined to decide whether Chapman v Post Office [1982] RTR 165 established a general principle that a pedestrian standing on a pavement could never be held contributorily negligent. Lord Justice Hughes and Lord Justice Ward agreed with Lady Justice Hallett.

Order: Appeal allowed.

• Court of Appeal (Civil Division): Allowed the appeal and quashed the finding of one-third contributory negligence.
• Mayors and City of London County Court: HHJ Matheson QC found the bus company liable in negligence but held the appellant one third responsible for the accident.