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Casey v Ali, Court of Appeal, 20 November 2012

7 December 2012
The issues

Road traffic – appeals procedure

The facts

Although conciseness in judgments was a virtue to be encouraged and whilst some judgments were too long, the fact remains that the judge must address the main issues in the case and give his decision upon them

On 15 February 2008 at about 11.30 pm the claimant was coming back from an evening drinking with friends. He had to cross Belgrave Middle Way, one of the main roads leading in to Birmingham. The point at which he chose to cross the carriageway comprised of three lanes in each direction, with a speed limit of 40 mph. He chose to use a pelican crossing and reached the central reservation in safety. He started to cross the westbound carriageway and had crossed the first two lanes and as he entered the third and final lane he collided with a car driven by the defendant. The lights on the pelican crossing were in favour of the motorist. As soon as the impact occurred the defendant braked. The car behind him braked safely. The trial judge dismissed the claimant’s claim for personal injuries. The evidence had been that the claimant had drunk four pints of lager in the course of the afternoon and evening. He accepted in cross-examination that he was trying to beat the traffic lights. The trial judge made three significant findings, firstly that the traffic lights were green in favour of oncoming traffic when the claimant started to jog across the carriageway. The second finding was that the lights were green for a significant period before the defendant reached the junction. The third finding was that the driver of the car ahead of the claimant had gone through the traffic lights ahead of the defendant. He found that the defendant was driving well within the speed limit when he approached the crossing. He found that in the middle lane there was a stationary Mini and that the defendant only saw the claimant when the claimant emerged from in front of the stationary Mini. The judge found that there was nothing the defendant could do to avoid the collision. The claimant appealed to the Court of the Appeal.

The decision

The judge had not addressed the question of whether the defendant could and should have seen the claimant when he was leaving the central reservation but before he went behind the Mini. The question that the judge had not answered therefore was whether the defendant was keeping a proper look out when he was 50 or 60 yards from the junction and the claimant was starting to cross the road. Although conciseness in judgments was a virtue to be encouraged and whilst some judgments were too long, the fact remains that the judge must address the main issues in the case and give his decision upon them. Here the judge had not dealt with what the Court of Appeal regarded as a crucial question.

The Court of Appeal was however loathed to order a fresh trial. Quantum had been agreed at £16,000. It would be grossly disproportionate to put the parties to the costs of a fresh trial if that could be avoided. Accordingly the Court of Appeal relying on the transcript of the evidence would give its own answer to the crucial question.

There was proper street lighting at the crossroads but the fact remains that visibility at night was not as good as visibility by day. The claimant was wearing dark clothes and since he was jogging he was only in the outside lane briefly before passing out of sight in front of the Mini. There was no reason to reject the defendant’s evidence about the dazzling effect of the headlights from oncoming traffic. Three separate drivers heading westward had all failed to see the claimant. A failure to observe in those circumstances did not amount to negligence. Appeal dismissed.

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