NO: B2/1999/7685
Neutral Citation Number: [2000] EWCA Civ 392
IN THE SUPREME COURT OF JUDICATURE                         
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LAMBETH COUNTY COURT
(HIS HONOUR JUDGE WELCHMAN)
Royal Courts of Justice  
                                  Strand  
                                  London WC2
 
                             Monday, 13th November 2000
B e f o r e :

LORD JUSTICE WARD

and

LORD JUSTICE JONATHAN PARKER

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ABAYOMI SOFOLA

‑ v ‑

JOHN COLES

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Telephone No: 0171‑421 4040 Fax No: 0171‑831 8838
(Official Shorthand Writers to the Court)
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MR  ABAYOMI SOFOLA, the Applicant appeared in person
MR JOHN COLES, the Respondent appeared in person
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J U D G M E N T
Monday, 13th November 2000
1.	LORD JUSTICE WARD:  This is an appeal by Mr Sofola against an order made by His Honour Judge Welshman on 12th July 1999 when he dismissed Mr Sofola’s claim for damages brought against, firstly, the London General Bus Company and, secondly, their bus driver, Mr Coles.
2.	The claim arose out of an incident which occurred in the Fulham Road on 26th September 1999. Without question it was a case, as everybody I think agrees, of so‑called “road rage”. The accounts of the incident vary dramatically.
3.	It was the claimant’s case that he, at that time, a chauffeur or mini‑cab driver was driving an American lady to Heathrow at about six o’clock ‑ the rush hour. He was travelling west in a stream of traffic which was apparently very heavy. His case was that he had emerged from a side road into the Fulham Road and was endeavouring to edge back into the stream of traffic when he was confronted by the London General Bus Company’s bus, being driven by Mr Coles, coming in the opposite direction. According to his witness statement (and this I think is common ground) the two vehicles ended up adjacent to each other.
4.	On his account of the events, the bus driver swore at  him and made not only ordinarily offensive but more particularly racially offensive remarks. According to the claimant, the bus driver in a very angry mood stopped his bus, jumped out of the bus, ran after the claimant who was attempting to drive away, and struck him in the face through the open car window, he still being strapped in behind the driver’s seat. As a result of that he suffered facial injuries, his lip was split and bruised and he later reported to the hospital.
5.	The bus driver’s account is quite different. He says that the claimant drove on the wrong side of the road directly towards his bus at a speed as high as 40 miles an hour and that he, the bus driver, had to brake in the emergency. They did end up alongside each other, but his account then differs. He denied that he was abusive. He says that the claimant spat at him. He jumped out of his bus to take the number and report the matter and call the police. The claimant drove at him so that he had to leap for his safety, being struck by the wing mirror as that happened and that, fearful for his life, he then struck the claimant through the open window.
6.	There was therefore a very serious conflict of evidence. The judge had nothing to go by except the two versions that were given to him because the police officer who subsequently investigated had done nothing more than  record each of the versions given to him.
7.	The judge gave a judgment which, with respect to him, is in some ways a little unsatisfactory. He said at page 4 that Mr Coles disputed the events and dealing with Mr Coles’ allegation of the vehicle being driven at high speed towards him, said this:
“This was queried by Mr Sofola and I must say I have some reservations as to whether he can have been driving on the wrong side of the road towards the bus at that speed.” 
8.	So that is a doubt expressed about Mr Coles’ evidence. Then he dealt with the immediate verbal exchange when the vehicles stopped adjacent to each other and he said this:
“Mr Coles could not remember exactly what he said. He denied that he uttered anything that amounted to racial abuse but he said that he did give vent to his feelings and expressed this in the witness box in a rather modest and mild manner. I am driven to the conclusion that the language in the event was in actuality considerably stronger than Mr Coles is able to, or does recall, and that may not be in any sense a criticism of Mr Coles because this was no doubt an incident which caused him to get angry and to give vent to his feelings and it is possible that he does not remember exactly what he said.” 
9.	Significant therefore in that passage is again the judge is doubtful about the accuracy of Mr Coles’ evidence but does acknowledge that Mr Coles was angry and wishing to give vent to his feelings.
10.	The judge then dealt with the allegation of spitting and found that that had occurred. He criticised Mr Coles for leaving his bus because that was contrary to the company’s rules and it was something he should not have done. So here again for the third time Mr Coles is being criticised. The judge recorded Mr Coles’ account and he made these findings:
“I find first of all that the claimant was driving on the wrong side of the road and at a fast speed. He was queue jumping. There is no question of him edging out or anything of that sort. He was driving in an irresponsible manner in a way that impinged upon and impaired the progress of the bus.”
11.	So there is a finding against the claimant. He found accordingly that the bus driver was obliged to make an emergency stop, and he dealt with the exchange between the two of them and found this:
“There was an exchange between the two of them and it is said that racist comments were made. I am not sure about that. I am uncertain and I am not going to find that there were racist comments. But what I am satisfied about, and Mr Coles as good as admitted this when I questioned him further in his evidence, is that his language was a great deal less controlled than he indicated in the witness box. How he expressed himself may well not have been appropriate but his anger certainly was and I come to the conclusion, having seen and heard him, and seen and heard Mr Sofola, that he did utter some very strong language which undoubtedly riled Mr Sofola. Whether it was simply offensive language in a general sense or whether it was racially offensive I am not able to say. But I think it was strong language.”
12.	I am bound to say that it is a surprise in a sense that having found that Mr Sofola was entitled to be riled, and having not accepted Mr Coles’ evidence, the judge did not accept that there was a racial connotation to the language. He did find that there was spitting by Mr Sofola seated in his Volvo motor car towards the bus driver seated in his bus, and he concluded that that was something that obviously riled Mr Coles for good reason and caused him to get out of the cab. He then made these findings:
“I am not satisfied at this stage that he was intent on doing any injury to Mr Sofola at all but he wanted to respond. He felt obliged to respond. It may not have been the wisest thing to do but it was an understandable human reaction to this situation. And when he tried to stop Mr Sofola’s motor car, Mr Sofola was unwilling to stop. The result was that Mr Coles had to move to one side and in the course of so doing was struck on the side by the motor car causing some damage to it. The incident was then very much out of control. Mr Coles, having been struck a powerful blow on the side by the car being driven at him really had good and reasonable grounds for fearing that something else might happen; that it was in this context that he struck Mr Sofola.
In the circumstances I have come to the conclusion that whilst Mr Sofola may well not have been going to get out of his car and cause any direct physical injury the circumstances were such that Mr Coles believed (I suspect mistakenly) but not in any sense unreasonably that something further of a seriously unpleasant nature was about to happen to him. It was in that context Mr Coles delivered the blow. And in my judgment, as a matter of law, he was justified, or at least what he did was not in any sense unreasonable; it was not an act of battery. It arose in circumstances where he reasonably believed that some serious injury was about to be done to him and that it was necessary for him to defend himself in order to avoid that occurring.”
13.	I have listened carefully to Mr Coles who appears in person and cannot really add much to what is already  expressed in the judgment, but it seems to me that the learned judge fell into error. He concluded that Mr Sofola may well not have been going to get out of his motor car. According to Mr Sofola he was still strapped into the car with his seat belt.
14.	The judge’s conclusion that something further of a seriously unpleasant nature was about to happen to him does not square as well with the account of Mr Coles that he was in fear of his life, that he feared that he might be again the subject of an attack using the car as a weapon. The car had already passed him by on his own account. He had come into contact with the wing mirror. The car was therefore not likely itself to be any threat to him in the circumstances and the “seriously unpleasant” thing that was next to happen to him is entirely unspecified. Even if he did hold that belief, it seems to me that the judge had no ground in law for concluding that it was at that stage a reasonable belief given that Mr Sofola was seated in his car making no apparent personal threatening movement.
15.	Secondly, even if that were the case, then the retaliation has to be justified. It has to be a reasonable response not an excessive one. Whilst the court does not weigh these emergencies to a nicety, it seems to me, as plain as can be that the response of the bus driver was wholly unreasonable and totally excessive. It was  unjustified for him to strike the seated driver through the open window of his motor car. That, in my judgment, amounted to a battery for which self‑defence was not an available excuse.
16.	In my judgment the learned judge fell into error and on the facts even as he found them in the respondent’s favour did not exonerate him completely. I grant permission to this appeal to be brought. Having heard the argument, I am satisfied that it should be allowed, but it seems to me that this is a matter of honour rather than compensation and for that reason I do not give permission to interfere with the award of £100 of damages. I would allow the appeal and enter judgment for the claimant in the sum of £100.
17.	I will deal next with a matter that does not relate to Mr Coles and that is Mr Sofola’s application for permission to appeal against the dismissal of his claim against the bus company. The bus company’s defence was that any action by Mr Coles was outside the limit of their responsibility. He was on a product of his own and they were not vicariously liable for his wrongdoing. I do not permit Mr Sofola to appeal against that for it seems to me to be plainly right. The only concern when the matter was last before me related to the order for costs that was made in the bus company’s favour in the sum of £2,000. My concern was not that the judge was not entitled to order costs against Mr Sofola in  favour of the bus company but that there was confusion about the exact Legal Aid position.
18.	I adjourned that application for that matter to be investigated. Unfortunately, it still remains shrouded in mystery as to whether or not Mr Sofola was in fact legally‑aided at any time. The documents currently before me suggest that there was never a valid Legal Aid certificate and no reason therefore to call in question that part of the judgment.
19.	I am bound to say that, and I repeat what I said before, it is perhaps a pity that the London General Bus Company should so vigorously pursue Mr Sofola for those costs. He is now a student, and I do not suppose he has the money, but that the company are entitled to the costs is a matter not in doubt so I would not grant Mr Sofola permission to appeal against that part of the order. It follows that I would allow the appeal only in respect of the claim against Mr Coles and substitute their judgment for the claimant in the sum of £100 as I have already indicated.
20.	LORD JUSTICE JONATHAN PARKER:  I agree.
(Judgment set aside; substitute judgment for payment in sum of £100 with costs here and below assessed in sum of £200 application to appeal against first defendant dismissed; 28 days for respondent to pay costs)