Grealis v Opuni [2003] EWCA Civ 177

Case No B3/2002/1034[2003] EWCA Civ 177
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE ROGER COOKE)
Venue Royal Courts of JusticeDate Tuesday, 28 January 2003
Strand
London, WC2
B E F O R E:
LORD JUSTICE KENNEDY
LORD JUSTICE MANTELL
LORD JUSTICE MANCE
Between
GREALISAppellant-v-
Between
OPUNIRespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR CHARLES SCOTT (instructed by Redferns of Wembley Middlesex) appeared for AppellantMR MARCUS DIGNUM (instructed by Liddell & Co of Romford Essex) appeared for Respondent
J U D G M E N T(As Approved by the Court)
Crown copyright©

LORD JUSTICE MANTELL:

This

[1]is an appeal from the order of His Honour Judge Cooke sitting in the Central London County Court on 6 March 2002 by which he dismissed the appellant's claim for damages arising out of a traffic accident.[2]As found by the judge, the essential facts are as follows. First, describing the scene, the judge found that the A5 is a major thoroughfare running north to south through the centre of Edgware. There is a point at which it forms a crossroads with Camrose Avenue to the southwest and Deansbrook Road to the northeast. North of the junction the road is named High Street, Edgware and to the south Burnt Oak Broadway. The two relatively minor roads are slightly offset, with Camrose Avenue being further to the south. Traffic at the crossroads is controlled by traffic lights which do not incorporate separate "right turn" or filter signals for vehicles on the A5 coming in either direction which wish to make a right-hand turn into Camrose Avenue or Deansbrook Road. There are, however, separate filter lanes on the offside of both south and north bound carriageways to accommodate such traffic. The two carriageways of the A5 either side of the junction are separated by island bollards.[3]The scene being set, the judge turned to the circumstances of the accident. He found that some time after 11 pm on 14 July 1997 the appellant - then an 18 year old student working part time as a pizza delivery boy - was riding his employer's moped along the A5 in a southerly direction intending to turn right into Camrose Avenue in order to make his last delivery of the evening. The traffic lights were on green and there were already some other vehicles in the filter lane of the A5 south bound carriageway waiting for an opportunity to make the same right-hand turn into Camrose Avenue. Instead of remaining in the turning lane, or the filter lane, either behind or alongside the other vehicles, the appellant effectively jumped the queue by passing to the right of the centre bollard before commencing his turn into Camrose Avenue only to come into collision with a Seat motor car being driven across the junction in a northerly direction. The judge also found that the appellant was probably travelling at about 10 miles per hour and the Seat - driven by the defendant in the action and respondent to this appeal Mr Seth Opuni, with his wife as front seat passenger - was travelling at between 37 and 39 miles per hour or possibly a mile or so faster. This particular stretch of road was governed by a 30 miles per hour speed limit. The judge further found that the collision was between the front of the Seat and the rear wheel of the moped and that, most probably, the collision would have been avoided if the respondent had been travelling at a slower speed and certainly had he been within the prescribed speed limit.[4]The argument advanced to

the judge by counsel on behalf of the appellant is summarised at page 10 of the judgment:

"The centre of Mr Scott's submissions is that this is a breach of the 30 mile per hour limit. Had the 30 mile per hour limit been adhered to the accident would have been avoided, in effect, QED, it is negligence."
[5]The judge said that he did not consider the case to be "as simple as that" and, for reasons which will follow, eventually rejected the argument. He referred to a number of authorities, and to Barna v Hudes Merchandising Corporation and Another [1962] CLR 321 in particular. In that case a motorist had been travelling at between 30 and 40 miles per hour in a 30 miles per hour area and had collided with a car being driven out of a side road. The County Court judge exonerated the defendant from all blame. The Court of Appeal, so it appears from the brief report, stated that - "Although the court might have decided the case differently, it could not be said that the judge's inferences could not be reasonably drawn from the evidence. The plaintiff had properly disclaimed any contention that exceeding the speed limit might be a breach of a statutory duty owed by the second defendant to the plaintiff." This last was a reference to the well accepted proposition that the various Road Traffic Acts are not intended to provide a remedy in civil law to a party injured by their non-observance. (See Monk v Warbey [1935] 1 KB 75 and Clarke and wife v Brims [1947] 1 KB 497). That is because, properly construed, those Acts impose public duties only and do not in addition impose duties enforceable by an aggrieved individual.[6]Having so directed himself as to the law, the judge went on to apply the law as he understood it to the facts of the case. This is what he said at page 11:
"Regulation is one thing, negligence is another. The two may quite often coincide but not in every case. Mr Scott suggests to me these are all of course old cases, decided 40 years ago, at a time when views on speed were different, and I ought not to follow them. I cannot do that. There not only are two of them, but three of them are decisions of the High Court, binding upon me as a Judge of the County Court, and one is a decision of the Court of Appeal which states quite clearly a finding of principle. If the Court of Appeal in modern times thinks it is right to depart from that, it is of course entirely a matter for them, but it is not for me. I must follow what they say."
A little later at page 12 he said:
"What one has got here is one looks at the photographs and one sees a road that in fact is a surprisingly open aspected road for a major thoroughfare as it is. The visibility is good. The road is pretty straight. There are two lanes on each side. In these circumstances the light was at green across what seems to be quite a major intersection. If the light is at green one can reasonably expect that other vehicles should not be crossing while the light is at green, and while one is approaching, and it seems to me that if a driver is crossing in those circumstances, at a speed between 30 and 40, as it seems to me likely in this case the higher thirties, that would not ordinarily be a breach of his duty of care to other road users. It is not, in my judgment, a proper analysis of a breach of duty of care simply to say that if he had gone slower there would not have been an accident."
And accordingly came to the conclusion that negligence on the part of Mr Opuni had not been established.[7]I would hold that the judge was right in his exposition of the law. Was he right in its application? I think not.[8]Although it does not necessarily follow that negligence is to be imputed to a driver who breaks the speed limit, there is no doubt that evidence the speed limit was being broken as with breaches of the Highway Code may provide evidence of negligence. Here the respondent was driving in excess of the speed limit and the judge found that had he been driving within the speed limit the accident would, most probably, have been avoided. In other words, speed was a cause of the accident.[9]That is not the end of the matter. The judge gave a number of illustrations where it could be said that speed had been a contributory cause of an accident but the driver could not be fairly held to blame. Here, however, the respondent was approaching a junction where he could see that there were some vehicles waiting to make a right-hand turn which would involve crossing his path. He knew, or ought to have known, that they were not subject to any halt sign. The lead vehicle was simply waiting for a sufficient gap in the traffic to make the turn in safety. In such circumstances a prudent driver ought to anticipate that the leading vehicle, at least, might misjudge the speed of the on-coming traffic and attempt to make the turn when there was insufficient space or time for the manoeuvre to be executed successfully. So the prudent driver would or should adjust his speed so as to be able to stop in such an event. In the circumstances with which the court is concerned that would impose no great hardship because, as the judge has found, it would only have been necessary to comply with the speed limit for that stretch of road. In those circumstances not to comply with the lawful limit would be negligent.[10]So I respectfully differ from the judge, as I may do with propriety given that I am simply drawing inferences from the primary facts which the judge has found.[11]But I do agree with the judge that the appellant must nevertheless bear heavy responsibility. He was cutting the corner and crossing the path of on-coming traffic. It would also seem that he was not keeping a proper look-out. In my view he should bear 80 per cent of the blame for what happened.[12]I am conscious that I have only dealt with one of the three grounds of appeal. The other two challenge the judge's findings as to the speed at which both the appellant and the respondent had been driving prior to the collision. In particular, it is suggested that the evidence ought to have led the judge to find that the respondent had been driving at 40 miles per hour or above immediately prior to applying his brakes. For my part I would not be inclined to disturb the judge's findings of fact with regard to that, nor do I think it makes a scrap of difference to the merits of the case or to the outcome of this appeal. Similarly, the speed at which the moped was travelling would appear to be entirely irrelevant to the outcome.[13]Accordingly, I would allow the appeal to the extent indicated.

LORD JUSTICE MANCE: I agree.

LORD JUSTICE KENNEDY: I also agree. It seems to me that there was much to be said for the conclusion reached by the trial judge. However if one were to ask an independent observer whether the defendant was entirely free from blame for this unfortunate accident, given that he was travelling at a speed in the region of 40 miles per hour, well in excess of the speed limit in the conditions outlined by my Lord, it seems to me that the answer would have to be in the negative.

[16]Accordingly, I agree with the proposal of my Lord.

Order

Appeal allowed with the costs in Court of Appeal and hearing before His Honour Judge Cooke to be subject to detailed assessment. Liability at 80 per cent against claimant and 20 per cent against defendant. Case remitted to Central London County Court re directions as to quantum

Cited in 1 later judgment