STEVEN PAUL MCGOWAN v (a patient by the Official Solicitor of the [2001] EWCA Civ 520

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
NOTTINGHAM DISTRICT REGISTRY
(His Honour Judge Brunning)
[2001] EWCA Civ 520Case No B3/2000/3609Venue Royal Courts of Justice, Strand, London WC2, Monday, 26th March 2001
Between
STEVEN PAUL MCGOWAN(a patient by the Official Solicitor of theSupreme Court, his Litigation Friend)ClaimantISOBEL DAVISDefendantPart 20ClaimantMOTOR INSURERS BUREAUSecond Part 20Defendant
Before
Lady Justice HaleMr R Maxwell QC (instructed by Messrs freethcartwright, Nottingham)appeared on behalf of the Applicant Claimant.The Respondent Defendants did not appear and were not represented.Date 26 March 2001

LADY JUSTICE HALE:

This

[1]is a claimant's application for permission to appeal against the order of His Honour Judge Brunning made on 9th November 2000 in the High Court, in the Nottingham District Registry. He dismissed the claimant's claim for damages for serious personal injuries sustained in a road traffic accident.[2]The accident took place at about 11 o'clock in the morning on 17th September 1996. The weather was fine and the visibility was good. It happened on the A60 Mansfield Road in Nottingham. This is a wide road with room for two lanes of traffic in each direction. It is not a dual carriageway or marked out in two lanes. It has a 30 miles per hour speed limit. It is a fast, straight road. Traffic customarily travels at between 35 and 40 miles per hour.[3]The claimant was riding a motorcycle southbound out of the city centre. He collided with the rear offside of the defendant's motorcar, a Volvo.[4]The defendant was driving across Mansfield Road. She was coming out of a side road, Mapperley Hall Drive, from the claimant's left, turning slightly to her left (that is, in the same direction as the claimant was travelling) and then turning right across the other carriageway (that is, the carriageway travelling northbound in the opposite direction) in order to enter Watcombe Road on the other side. This is a staggered junction, where Watcombe Road is 17 metres further south than Mapperley Hall Drive. Both are slightly slanting, rather than at right angles to the main road. The judge was satisfied that the defendant turned left and then right - not a rolling, sweeping manoeuvre.[5]The judge found that the collision took place in the other carriageway (the carriageway bearing the oncoming traffic), approximately one metre into the northbound lane. The impact was with the rear offside of the defendant's vehicle. I note that Police Constable Musgrove, the accident investigator who arrived at the scene very shortly after the accident, says that the impact damage was to the rear offside passenger door below the door handle, the rear offside wheel arch and the rear offside wing. The rear offside quarter-light was broken and there was a dent in the `C' pillar adjacent to it. The damage to the motorcycle was to the front wheel and forks. His view was that this was consistent with a frontal collision and with impact damage to the rear offside of the wheel of the car. This indicates that this was the first point of contact and that the car was at an angle across the path of the motorbike.[6]It follows from this that the defendant's car was nearly completely into the northbound carriageway at the time. The judge said that a metre or less was still in the southbound carriageway. The judge said that the claimant must have been approaching in the offside lane (presumably he means of the southbound carriageway), although in fact he could also have been over on his wrong side of the road in the northbound carriageway.[7]The claimant travelled over the roof of the car. The other damage to the offside of the car was made by the motorbike spinning away clockwise. He ended up on the other side of the road, severely injured. His crash helmet came off in the accident.[8]Everyone was very surprised by the accident. No one saw the claimant approaching. There was no objective evidence by which to judge his speed.[9]The judge found the defendant a straightforward witness, open and prepared to listen to questions. Her evidence carried substantial weight. She had waited at least a minute at the junction for traffic coming from her right (that is, in the same direction as the claimant). The judge was satisfied that she looked to her right, and he accepted that she did not move out until the road was clear. It was her normal practice to indicate first left and then right at this junction, which was one she knew well, and the judge was satisfied that she was indicating right as she moved towards Watcombe Road. She was not moving quickly. The manoeuvre would take her about eight seconds.[10]A Mr Mill was waiting behind her in Mapperley Hall Drive. He moved up to the junction as she moved out. He realised that there was now traffic coming from the right. The road rises to the right and reaches the brow of a hill. So he waited and traffic went by safely, passing the defendant on her nearside. There was ample room for this.[11]Because the judge was satisfied that the defendant looked right and did not move out of Mapperley Hall Drive until the road was clear, and relying on the evidence of how long it would take the claimant to come into view over the brow of the hill, he found that the claimant must have been travelling at more than 30 miles an hour and could have been travelling at substantially more than that. He found that the accident was consistent with the claimant approaching at some speed and not keeping a proper lookout, while the other traffic did. He must have seen the defendant at the very last moment, and maybe he did not see her at all. In those circumstances, it might be thought not surprisingly, he found that the defendant was not to blame for the accident.[12]Mr Maxwell QC, for the claimant, seeks permission to appeal. He relies on the following passage from the note of judgment which

the judge approved:

"It is common sense that a driver does not keep his head fixed to the right. There were 8 seconds from moving off from starting the turn and in [that] time the motorcyclist covered the ground in 6.5 seconds. When she looked she said it was safe to turn and I am satisfied that it was. The argument is that the motorist must continue to look behind. Mr McLaren QC put before me the Court of Appeal case of Moss v Dixon involving a cyclist. The facts were different. The Judges (passages quoted) in that case made plain comments that a road user was not under a duty to look behind. Mrs Davis was such a road user. The argument is that if she had looked behind she would have seen. She started the manoeuvre she should not have done. She should let him go by. This does not withstand the argument of reasonableness. The attention of the driver is to whatever is approaching in the northbound lane and to crossing the southbound lane. To say that you should look behind you to see if someone is overtaking you is not sustainable."
[13]Mr Maxwell today argues that a driver undertaking a manoeuvre such as that of the defendant in this case should be keeping a continual lookout in as many directions as it is possible: looking ahead, glancing to each side, glancing behind and using mirrors. Had the defendant done this, she would have seen the claimant and she could have taken steps to avoid the accident.[14]The difficulty I have with that is two fold. The first is that the judge tried this case and he heard all the evidence. He had his impression of the witnesses, in particular the defendant and Mr Hill, as well as his view of the help that he could or could not get from the expert evidence. He also paid attention to the Highway Code and to the case of Moss v Dixon . Of course, such cases do not necessarily assist in determining what is and is not reasonable care in a different case. They may bear some similarities, but obviously no case is identical. But the judge reached the conclusion that the defendant in this case had exercised reasonable care in carrying out the manoeuvre. That is the first difficulty with that argument, because that is a conclusion with which this court will be slow to interfere.[15]The other difficulty I have with it is that I have the greatest problem, in view of the judge's other findings, in working out what difference it would have made. The defendant could not have been continually looking behind her: she had to look in front as well and, in particular, to concentrate on what was in front of her as she made this movement. It is only had she looked at a particular time and anticipated that a motorcyclist might be coming behind her at such speed and with such lack of care as to seek to overtake her on her offside (as opposed to, like everybody else, on her nearside) that she could possibly have done anything to avoid it. Furthermore, I have the greatest difficulty in considering what she could have done to avoid it, given the judge's findings as to the place where the collision took place, where she was already well into her turn towards Watcombe Road and well into the northbound carriageway, and given the impact evidence on her car, which again suggests that she was well into the manoeuvre before the impact took place.[16]In those circumstances, I cannot see that an appeal in this case, tragic though it was and grievous though the claimant's injuries were, could have a real prospect of success. I would dismiss this application.

Order

application for permission to appeal dismissed; detailed public funded costs assessment.

Cited in 1 later judgment