LEE NORTH v TNT EXPRESS (UK) LIMITED [2001] EWCA Civ 853

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(MR A COLLENDER (sitting as a Deputy High Court Judge))
[2001] EWCA Civ 853Case No B3/2000/2166Venue Royal Courts of Justice, Strand, London WC2, Friday, 25th May 2001
Between
LEE NORTHClaimant/RespondentTNT EXPRESS (UK) LIMITEDDefendant/Appellant
Before
Lord Justice SchiemannLord Justice TuckerLady Justice HaleMR S VAUGHN (instructed by Cunningham Turner, Lancashire BB1 8BB) appeared on behalf of the AppellantMR P KILCOYNE (instructed by Calvert Smith & Sutcliffe, Surrey TW9 1PU) appeared on behalf of the RespondentDate 25 May 2001
[1]Friday, 25th May 2001 LORD JUSTICE SCHIEMANN: Lady Justice Hale will deliver the first judgment.

LADY JUSTICE HALE:

[2]This is an appeal from an order of Mr Andrew Collender, QC, sitting as a deputy judge of the Queen's Bench Division on 14th April 2000. This was an action for damages for personal injuries sustained when the claimant, having climbed up on to the front bumper of the defendant's lorry, fell off and was struck by the lorry. The judge assessed the claimant's responsibility for his own injuries at 75 per cent and the defendant's responsibility at 25 per cent. The defendant appeals contending that he should have no liability at all. There is no cross-appeal by the claimant.[3]The circumstances as must be apparent were unusual. The accident took place in the early hours of Saturday 18th March 1995 shortly after 1.00am. A Mr Sherwood was driving the defendant's lorry, which was described by the judge as a very substantial fully loaded and sealed articulated lorry. He had with him a fellow employee, Mr Dawson, to whom he was giving a lift. They had been diverted from the A3 through the centre of Weybridge in Surrey. They came to a roundabout and had to stop. Beside the roundabout between the first and second exits from their point of view was a wine bar called Bogart's.[4]The claimant had been drinking with friends that night in the wine bar. The closing time was 1.00am. He and a number of others were outside on the pavement waiting for taxies. As the lorry was coming away from the roundabout taking the second exit, the claimant stepped into the road ahead of it. The lorry stopped. The claimant said that he asked the driver for a lift home and the driver was offensive to him. The judge found that the lorry driver was not offensive to the claimant. The claimant then climbed up on to the front bumper of the lorry, holding on to the driver's side windscreen wiper. He did not hold on to a handle beside the windscreen wiper, which is there for the cleaners to hold on to when they are cleaning the lorry. His own case was that he intended to hold up the lorry for some five minutes.[5]The judge found that the driver twice asked him to get down from the lorry. When he did not do so the driver decided to drive off very slowly. The driver said that his intention was to take the claimant away from the group of people who were on the pavement to find a more peaceful spot to try and persuade the claimant to climb off the lorry in a less threatening atmosphere. The judge found the driver a generally truthful witness who gave the best account he could of the evening's events. In comparison he was not impressed with the claimant as a witness and thought that his evidence contained a good deal of after-the-event rationalisation. Nevertheless, the judge did find that none of the others in the group did anything that demonstrated aggression or threat towards the driver, his mate, or the lorry before the accident. He did find it probable that some of them followed the lorry up the road but he did not consider that to be indicative of threat or aggression, rather it was consistent with curiosity and concern.[6]The claimant's case was that the lorry was driven in a jerking manner, alternately braking and driving so as to dislodge the claimant. The judge found that the driver was driving slowly, although in the course of the journey up the road he did slow the lorry both by using the clutch and on occasion also the brakes, and that the driver's prime motive was:
"...to demonstrate to the claimant the necessity of him dismounting from the lorry and, indeed, to persuade him to do that very thing, rather than forcibly and uncontrollably to dislodge him from the lorry..."
[7]The lorry travelled for a short distance to a mini roundabout, went round that and out of the third exit. Soon after that the claimant fell from the front of the lorry. The judge calculated that the lorry had travelled in all some 100m taking about 40 seconds so to do. When the claimant fell the driver braked immediately but it was too late to prevent the lorry from striking the claimant. He suffered serious internal injuries from which fortunately he has made an excellent recovery.[8]The judge found that the immediate cause for the claimant's fall was that the claimant had pulled out the windscreen wiper holding. The description given in evidence by the driver, Mr Sherwood, and Mr Dawson, indicated a deliberate and vigorous pulling at the windscreen wiper. As a result of that it came away from its fixing. The judge found that this was a combination of the force of the claimant pulling at it, and also:
"The inevitable force... imposed upon that assembly by the attachment of a 15 and a half stone man standing on the bumper ledge, and inevitably being moved, not only by his own conscious movements, but by the movement and acceleration and deceleration of the lorry."
[9]The defence did not plead necessity or duress of circumstances but in effect the judge rejected this. "I do not consider that Mr Sherwood had operating on his mind, or reasonably could have had operating on his mind, a fear of imminent attack by those other young people. What he was faced with was an irritating inebriate impeding his progress in circumstances which had the potential to become violent but had not done so and might never do so."[10]The judge asked himself whether the driver "acted properly or reasonably in all the circumstances in moving the lorry and in driving round the road as he did." He concluded that the driver did not. First, there was "not such a pressing need" immediately to take such a potentially dangerous step. Moreover, secondly, the driver did not simply move the lorry slowly for a short distance and then stop; he drove up the road at varying speeds for about 100m and did not stop until the claimant fell off. The problem created by the claimant in climbing on to the lorry was "not one of such agony" that the driver exercised reasonable care towards him.[11]He also rejected the defence of volenti non fit injuria . This was not like those sporting cases where participants accept known risks of a lawfully conducted sport, or like an inherently risky joint enterprise such as going up together, drunk, in a light aircraft. He considered the case most like that of Marshall v Osmond [1983] 1 QB at 1035, where the claimant helped to create the very event or want of care which caused the mishap. In that case a person fleeing from a police car pursuit was hit by the police car which was skidding as it tried to stop beside the car being followed. The defence of volenti was rejected although there was held to be no breach of duty.[12]Hence,

the judge concluded:

"The exigencies of the situation did not, as I have already found, require Mr Sherwood to drive the lorry down the road, and even less so to do it for 40 seconds or 100 metres. It was unwise and unsafe to do so, and there was a breach of duty."
[13]Mr Vaughn, who appears for the appellant, argues primarily that there was in the circumstances of this case no breach of duty. He also argues that the claimant's own act in deliberately and vigorously pulling at the windscreen wiper broke the chain of causation had there been such a breach. Principally, he says, the driver did exercise reasonable care in all the circumstances; he was in a similar position to a rescuer; and he had been placed in a dilemma by the claimant himself. What, he asks, was the driver supposed to do? He relies on the passage of Sir John Donaldson MR in Marshall v Osmond at 1038C:
"I think that the duty owed by a police driver to the suspect is, as Mr Spokes, on behalf of the plaintiff, has contended, the same duty as that owed to anyone else, namely to exercise such care and skill as is reasonable in all the circumstances. The vital words in that proposition of law are 'in all the circumstances', and of course one of the circumstances was that the plaintiff bore all the appearance of having been somebody engaged in a criminal activity for which there was a power of arrest."
[14]Later on he said:
"As I see it, what happened was that this police officer pursued a line in steering his car which would, in the ordinary course of events, have led to his ending up sufficiently far away from the Cortina to clear its open door. He was driving on a gravelly surface at night in what were no doubt stressful circumstances. There is no doubt that he made an error of judgment because, in the absence of an error of judgment, there would have been no contact between the cars. I am far from satisfied on the evidence that the police officer was negligent."
[15]It is interesting that in this case, when discussing contributory negligence, the judge remarked that it was extraordinary that the claimant did not get off the lorry the moment it started to move, when it was going very slowly indeed, and as indeed one of his own witnesses had also wondered. The judge also commented that the driver, although in breach of duty, was put in a difficult situation and his was an error of judgment.[16]It seems to me that the judge in this case applied too rigorous a standard of care when asking himself whether what the driver had done was reasonable in all the circumstances. He referred, as I have indicated, to the fact that there was "not such a pressing need." Later on he referred to the fact that "the exigencies of the situation did not... require" the driver to drive the lorry down the road. That is putting it too high. It seems to me that had the driver indeed done what the claimant said he had done, that is driven in such a violent and erratic way as to indicate that he was trying to dislodge the claimant from the front of the lorry, there could indeed have been a breach of the duty of care because he would have been going well beyond what could be considered a reasonable reaction to the difficult situation in which he was placed. But one has to take all the circumstances of that situation into account when deciding whether what he did do was such a reasonable reaction. These include the fact that he was put into the dilemma by the claimant himself who was behaving in an offensive and thoroughly irresponsible fashion, displaying a complete lack of regard for his own safety, let alone for the difficult position in which he had put the driver and his mate. One also has to take into account the surrounding circumstances. It is was late at night (just after the closing time for this particular establishment), there was a reasonably large group of people on the pavement, some of whom at least were friends of the claimant, some of whom had obviously been drinking, and even if the others were not actually aggressive, the claimant was. The claimant's intention may only have been to hold up the lorry for five minutes but the driver and his mate had no means of knowing that and were put in a very difficult situation. In those circumstances I would not consider it unreasonable to drive off very slowly with a view to stopping at some quieter spot away from the group to persuade the claimant to get off.[17]Furthermore, the judge could have taken more account of the fact that the claimant only fell off when he was engaged in an even more stupid and dangerous act of pulling at the windscreen wiper on to which he was holding. I would agree with Mr Kilcoyne on behalf of the respondent claimant that that does not necessarily rob the driving of all causative effect, but it does indicate something about the reasonableness of the driver's conduct up until that point.[18]For my part I would say that there was in the particular circumstances of this case, in the very difficult situation in which the driver found himself, no breach of the duty to take reasonable care. For that reason I would allow this the appeal.

LORD JUSTICE ROBERT WALKER: I agree.

LORD JUSTICE SCHIEMANN:I also agree. (Appeal allowed with costs against the respondent; costs to be determined by a costs judge, subject to detailed assessment; permission to appeal to the House of Lords refused).

Cited in 2 later judgments