MARTIN COOK v 1. WALLACE SIDNEY THORNE [2001] EWCA Civ 81

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BRISTOL DISTRICT REGISTRY
(HIS HONOUR JUDGE RUTHERFORD)
[2001] EWCA Civ 81Case No B3/2000/2697Venue Royal Courts of Justice, Strand, London WC2A 2LL, Tuesday 23 January 2001
Between
MARTIN COOKClaimant/Respondent1. WALLACE SIDNEY THORNE2. KEVIN PARKINSONDefendants/Appellants
Before
The Master of the RollsLord PhillipsLord Justice Simon BrownLord Justice LongmoreMR WILLIAM FEATHERBY and MR CHARLES CORY WRIGHT (Def 2) (Instructed by Messrs Veitch Penny, Exeter, EX1 1UP)appeared on behalf of the Appellant.MR R DENYER QC (Instructed by Messrs Harris Fowler, Taunton, TA1 3PN)appeared on behalf of the Respondent.Date 23 January 2001
[1]LORD PHILLIPS, MR: I shall ask Longmore LJ to give the first judgment.

LORD JUSTICE LONGMORE: On 10 April 1996 Mr Martin Cook, the claimant in the action and the respondent to this appeal, had been with three of his friends at a golf tournament. In the course of the day and the evening he and his friends had a considerable amount of drink. They had arranged for a friend, Mr Kevin Parkinson, who was not taking part in the tournament, to pick them up in his car and take them home. This he did. Mr Cook was one of the three back seat passengers. He was sitting directly behind the driver.

[3]Mr Cook fell asleep in the course of the journey but woke up as the car was crossing Mark Moor in the Somerset levels. He started be sick and Mr Parkinson, fearing he also might be sick as a result of the offensive smell, stopped the car on a straight stretch of the road. Mr Cook opened the rear off-side door, got out of the car and continued to be sick in the road. Mr Parkinson also got out of the car to get some fresh air. He may have been retching as well.[4]The road was not particularly wide. It was a B-road. Two cars could pass each other, but there was not much leeway and the road was to some extent blocked by the vehicle (which was more or less parallel to the verge with its open doors) and by people on the road. Not only were the car's headlights on full beam but Mr Parkinson had not switched on the hazard lights before he got out of the car.[5]The first defendant, Mr Wallace Thorne, was in a car coming in the opposite direction. As he approached, Mr Parkinson shut the driver's door and lent up against the vehicle. Mr Thorne succeeded in passing. But the rear passenger door remained open and Mr Cook remained in the road nearby still being sick. Mr Thorne had been travelling, initially, at about 40 miles an hour. By the time he passed Mr Parkinson he was doing about 30 miles an hour and was probably partly on the road and, to some extent, on the verge. He struck Mr Cook who was seriously injured.[6]While Mr Thorne was on the straight stretch of road approaching Mr Parkinson's car, he had flashed his own headlights on three occasions to warn the other driver that the headlights of the car were dazzling him. Nothing happened because Mr Parkinson was outside the car trying to compose himself. Although Mr Thorne did slow down from about 40 to about 30 miles an hour, he was still doing 30 miles an hour when he passed the headlights of Mr Parkinson's car. The judge's finding was that he braked a little but to no great extent.[7]Mr Cook sued Mr Thorne and Mr Parkinson in respect of his injuries. Both defendants alleged contributory negligence against Mr Cook on the basis that he had no business to be in the middle of the road. This aspect of the case was dealt with by the learned judge, His Honour

Judge Rutherford, sitting as a judge of the High Court in Bristol, as follows:

"I am reminded that in looking at the claimant and considering contributory negligence I have to treat him not as a man who was very drunk on the night but rather as a man who was perfectly sober and responsible for his actions. Here he was in the middle of a road at night with no street lighting, thereby effectively causing an obstruction to any vehicle coming the other way when he could and should, it seems to me, have moved to the side of the road to keep safely out of the way while he was being sick. It seems to me there must be some element of contributory negligence and I think Mr Denyer on his behalf accepts that. Doing the best I can, I think that must be assessed at 30 per cent."
[8]He went on to apportion blame as between the defendants and held that Mr Thorne, the first defendant, was 70 per cent to blame and Mr Parkinson 30 per cent. Both defendants now appeal against the finding of the 30 per cent contributory negligence on the part of the claimant, Mr Cook. They submit that the finding should have been the other way round so that Mr Cook should be found three-quarters or two-thirds to blame for his own injury.[9]Mr Featherby has appeared on behalf of both the defendants. In an economical and attractive argument he has submitted:(1) That the claimant must be treated as a sober and responsible person and could not claim that he was prevented from taking proper care by the fact that he was drunk.(2) On that basis, the finding of the judge that the claimant was 30 per cent contributorily negligent was much too low and indeed should be reversed. He amplified that by submitting that it was an excessive counsel of perfection to expect the first defendant to slow down to much less than 30 miles an hour because that was simply not the way a prudent driver would drive, particularly in a remote area. Mr Featherby further submitted that, looking at it from the claimant's point of view, the claimant was doing an extraordinary thing by just standing in the middle of the road and had a much better opportunity of seeing the defendant and getting out of the way than the first defendant had of seeing him.(3) Mr Featherby submitted that the right approach was exemplified by this court in the case of Barrett v Ministry of Defence [1995] 1 WLR 1217 and Jebson v Ministry of Defence [2000] 1 WLR 2055. The submissions mainly concerned the first of those authorities where a naval airman became very drunk at a shore based naval establishment in Norway. He was put on his bunk by his colleagues but died having asphyxiated on his own vomit. The Court of Appeal held in that case that the deceased was two-thirds to blame for his death.[10]The judge accepted the first submission of Mr Featherby, as stated in the passage of the judgment that I have read, and so do I. It does not however seem to me to follow that the judge's assessment of 30 per cent responsibility on the part of the claimant was too low. In the first place it is so well-known as to be axiomatic that this court is extremely reluctant to interfere with a first instance judge's apportionment of blame, particularly if there is no error of fact or misdirection in law in his judgment (see in particular The MacGregor [1943] AC 197 and Brown v Thompson 1998 1 WLR 1003 at pages 1008-9 per Winn LJ and 1013 per Willmer LJ). No quarrel is made in the present case with any of the findings of fact of the judge or of his directions in law. The most that Mr Featherby is able to say is that the conclusion of the judge, that the first defendant should have slowed down to a crawling pace or about 5 miles an hour or stopped, is wrong because, as he puts it, that is simply not the way a prudent driver would drive.[11]Secondly, the judge gave what seem to me to be cogent reasons for attributing more blame to the first defendant, Mr Thorne, in particular, than to the second defendant, Mr Parkinson. Those reasons also have considerable force and must have influenced the judge's decision as to the comparative blameworthiness of Mr Cook. Having found that the first defendant was dazzled by the headlights, the judge said (at [age 11B):
".... if you are dazzled you have to take some action yourself. The Highway Code, which again is not determinative of this, gives you a choice: it says you should either stop or slow down, it is a matter for the prudent driver to decide what is the best course to take. But if you are, as the first defendant said to me, for nearly 400 yards driving nearly blind -- and I am quite prepared to accept Mr Featherby's submissions that probably 400 yards is an exaggeration, but never mind -- then it seems to me that you have either got to slow down very, very considerably, and I would have thought far below 30 miles an hour, or indeed you have got to stop because you really cannot drive down a road, no matter how straight it may be, nearly blind, and that is what the first defendant very fairly said."
[12]There is another passage to much the same effect at page 12A-B but I would also quote, in terms, a passage at page 13A:
"I find that the first defendant went on at 30 miles an hour and that was wholly unrealistic. At the very least, he ought to have been at almost crawling speed. If I had to put a speed on it I would have thought little more than 5 miles an hour by the time he reached it, but it may even be, and it is a matter for his judgment as a motorist, that he should have stopped if he could not safely go past. He clearly was blinded. Clearly, he was in a very dangerous situation."
[13]I agree with those observations of the judge. I would not be minded to interfere with his conclusion that Mr Cook was 30 per cent to blame for the accident but no more.[14]Last, Barrett v Minister of Defence is not a comparable case. Taking Barrett's case, this court reversed the trial judge who there held that the Ministry was in breach of duty in failing to protect the deceased from his own weakness. This court concluded that the Ministry's responsibility only began when the claimant had collapsed as a result of his own intoxication. Thereafter the measures the defendants took fell short of the standard to be expected. In those circumstances, it is not surprising that the claimant was held to be two-thirds responsible. It is worthy of note that the passage in Barrett , on which Mr Featherby has relied and which deals with the question of con contributory negligence, comes just after the summary of the case on duty of care made by Beldam LJ, who said at page 1225E:
"I would reverse the judge's finding that the defendant was under a duty to take reasonable care to prevent the deceased from abusing alcohol to the extent he did. Until he collapsed, I would hold that the deceased was in law alone responsible for his condition. Thereafter, when the defendant assumed responsibility for him, it accepts that the measures taken fell short of the standard reasonably to be expected. It did not summon medical assistance and its supervision of him was inadequate."
[15]It is in the light of those findings that the court there was able to come to the conclusion that the deceased was 75 per cent responsible for his death.[16]It seems to me that the case of Jebson is even more different from the present case and the discussion of contributory negligence, in any event, formed a very small part of the judgment. For my part I do not get any assistance from that case.[17]In the present case, by contrast with Barrett , the first defendant was at all times under a duty of care while using his car on the road. He was driving blind for a considerable distance, as found by the judge, and that, as the judge said, was a very dangerous situation. That was the situation well before Mr Cook was hit and injured. In those circumstances it cannot, in my judgment, be said that Mr Cook was more to blame than Mr Thorne.[18]I would therefore dismiss this appeal.

LORD JUSTICE SIMON BROWN: I agree. The judge's finding of 30 per cent contributory negligence seems to me not ungenerous to this claimant but by no means generous enough to allow this court to intervene. Mr Featherby asks us actually to reverse the apportionment, ie to assess contributory negligence at 70 per cent. That invitation I would unhesitatingly decline.

[20]It must be remembered that the apportionment under challenge is between the claimant on the one hand and not just one but both of the defendants on the other. Between them these two defendants produced a situation in which the first defendant was blinded by the others' full beam headlights and could see nothing ahead of him for the entire period of his approach, yet he never slowed to less than some 30 miles per hour. On no view would I regard the claimant's responsibility as equal to that of the defendants' combined responsibility let alone as exceeding it. I too would dismiss this appeal.[21]LORD PHILLIPS, MR: I would also dismiss this appeal. Mr Featherby, realistically, submitted that we should interfere here if, when we read the judgment, it struck us that the apportionment was manifestly the wrong way round; that we should interfere if it seemed to us that the preponderance of responsibility for this accident plainly fell upon the Claimant himself. But in order to make good that case, Mr Featherby was driven to attack the Judge's appraisal of the negligence of the first Defendant.[22]The Judge found that the first Defendant was confronted with what should have appeared to him a situation of danger. There was a car, stationary, with its headlights full on towards him, blinding him completely. In that situation the appropriate response should have been to slow to crawling speed, if not to stop, to find out what was going on. Mr Featherby submitted that this was simply unrealistic and that no driver would behave in this way.[23]I do not agree. It seems to me that this appraisal by the Judge was a realistic appraisal of the position and, having regard to that, there is no basis upon which his apportionment should be interfered with.

Order

Appeal dismissed with costs.

Cited in 2 later judgments