Christian v South East London And Kent Bus Company

An appellate court must exercise great restraint before overturning first-instance findings of fact, including evaluative findings. Intervention requires an obvious error, a conclusion outside the range reasonably open on the evidence, or a material legal error. Where a driver is suddenly placed in an emergency and takes evasive action, negligence must be assessed without overcritical hindsight. A Court of Appeal should not substitute its own view merely because CCTV or photographic evidence could support another inference, particularly where the trial judge also assessed oral evidence.

The appellant was injured when a passenger fell against her after a bus driven by the respondent’s employee braked suddenly. The trial before His Honour Judge Birtles at the Central London Civil Justice Centre was confined to liability. The judge found that another vehicle had moved suddenly into the bus’s lane and that the driver was not negligent. The appellant appealed, arguing that the driver should have braked earlier and that the judge had misinterpreted the CCTV evidence. The central issue was whether the Court of Appeal should interfere with the trial judge’s factual assessment and conclusion on negligence.

1. Appeal dismissed. Lady Justice Gloster delivered the judgment, with Lord Justice Floyd agreeing.
2. The Court of Appeal exercises the greatest restraint before overturning findings of fact made at first instance. That restraint applies not only to findings based on witness credibility and primary facts, but also to the trial judge’s evaluation of those facts. The appellate court must recognise the advantage of the judge who heard the oral evidence and assessed it alongside the photographic and CCTV material. The principles stated by Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360 supported that approach.
3. Intervention was not justified merely because a different judge might have reached another view. The factual conclusions would need to be obviously wrong, outside the range reasonably open on the evidence, or affected by reliance on irrelevant matters or a misapplication of the law.
4. The assessment of a driver suddenly placed in a position of peril or emergency must not be made by an excessively critical standard informed by hindsight. The principle identified in Ng Chun Pui & Ors v Lee Chuen Tat & Anor [1998] RTR 298 was applicable to the circumstances in which the driver reacted to the red vehicle.
5. The critical events occurred within approximately four or five seconds. The trial judge was entitled to find that the red vehicle’s manoeuvre created the emergency, that the driver’s evasive movement was reasonable, and that the evidence did not establish negligence in failing to brake at either of the earlier suggested moments. The photographs, considered without the driver’s oral evidence, did not demonstrate negligence. The trial judge had made a careful assessment and had not erred in law. His decision was therefore upheld.

• Central London Civil Justice Centre: His Honour Judge Birtles dismissed the personal injury claim on liability on 5 March 2013.
• Court of Appeal (Civil Division): the appeal was dismissed on 10 July 2014. The Court declined to interfere with the trial judge’s factual findings.