Zanatta v Metroline Travel Limited –  EWCA Civ 224
The Court of Appeal has today handed down judgment in the case of Zanatta v Metroline with Lady Justice Davies, Lady Justice Andrews and Lord Judge Moylan unanimously dismissing the claimant’s appeal.
The claimant, a Brazilian national who had arrived in the United Kingdom shortly before the accident, stepped out in front of the defendant’s double-decker bus without looking in the direction of the vehicle’s approach. The bus driver swerved to avoid the claimant, but collided with a traffic island and then the claimant, causing serious, life-changing head injuries.
Evidentially, this was an extremely difficult case. As a result of her injuries the claimant could not recall the circumstances of the accident, the bus driver died of unrelated causes prior to the trial, there was no CCTV or telematics evidence, and the only independent witness who provided a formal statement - a bus passenger – did not directly observe the incident. The parties and the court were assisted by reconstruction evidence.
It was the claimant’s case that the bus driver, having noted the presence of the claimant some 90 metres prior to the impact point should have taken “effective measures” to avoid an accident, i.e. he should have slowed down to a speed that would allow him to stop should the claimant step out. The driver should also have sounded his horn as a precautionary measure.
In the alternative, the defendant’s case was that the bus driver, having slowed the bus and covered his brake when he first became aware of the claimant, actually took more precautionary measures than the average driver. The claimant did not become an actual hazard until she stepped off the pavement and, at that stage, an accident was unavoidable as the claimant was in the road for a maximum of two seconds pre-impact. To suggest that the driver should have slowed the speed of the bus to enable him to stop in all circumstances, and that he should have sounded his horn as a precaution, was an unrealistic counsel of perfection. The bus was travelling at an appropriate speed, within the speed limit, at all times.
The judge at first instance dismissed the claim and commented that had he found for the claimant he would have made a reduction of 70% for contributory negligence.
The claimant appealed on three grounds:
(1) The judge’s decision was unjust because of serious procedural irregularities and was in any event wrong as the trial judge disregarded common ground agreed between the parties that (a) the bus driver had a clear and unobstructed view of the claimant on his approach; (b) the bus driver first observed the claimant about 90 metres from the point of impact before she began to move towards the kerb; (c) he reacted to the claimant’s presence by taking the precautionary measures of (i) keeping the claimant under observation; (ii) shortly thereafter taking his foot from the accelerator to cover the brake, therefore slightly reducing his speed, in finding that (a) the driver’s view was obstructed and there were competing demands for his attention; (b) the driver first registered the claimant as a potential hazard and reacted to her presence about 15–25 metres from the point of impact when she moved towards the kerb into the path of the bus; (c) the claimant, therefore, failed to prove her case.
(2) The judge was wrong in failing to find that the driver, having identified the claimant as a potential hazard, should have taken effective precautionary measures, namely slowing down to a speed which would have enabled him to stop in time if the hazard of the claimant stepping into the road eventuated.
(3) The judge was wrong to find 70% contributory negligence.
The appellant’s appeal failed on grounds one and two and the third ground, therefore, fell away.
It was found that there was actually no common ground as to the circumstances that led up to the collision or the exact distances involved at each stage. The judge appropriately interpreted all of the evidence before him while carefully avoiding making any artificially precise findings of fact. The reconstruction evidence, as he noted, could only take the trial judge so far.
It was rightly recognised that while the evidence segmented the accident into distinct stages this was a fast-moving event where the circumstances evolved very quickly.
The judgment serves as a useful reminder that the appropriate standard of care is that of the reasonable, not perfect driver. Parties should be wary of over analysing fast-moving accidents with the benefit of hindsight.
For the Appellant
Counsel: Andrew Roy, 12 Kings Bench Walk
Solicitor: Adam Dyl, Anthony Gold Solicitors LLP
For the Respondent
Counsel: Anastasia Karseras, 2TG
Solicitor: Rachael Lumb, Keoghs Solicitors
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