King v Department of the Environment, Transport & the Regions [2003] EWCA Civ 730

Case No B3/2002/1161[2003] EWCA Civ 730
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of JusticeDate Friday 23rd May, 2003
Strand,
London, WC2A 2LL
Before
LORD JUSTICE SCHIEMANNLORD JUSTICE SEDLEYLORD JUSTICE LAWS
Between
TOMMY FRANCIS KINGClaimant / RespondentDEPARTMENT OF THE ENVIRONMENT, TRANSPORT & THE REGIONSDefendant / Appellant
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
David Wilby QC (instructed by Dakers Green Brett Solicitors) for Claimant/RespondentIan Burnett QC & Ian Ashford-Thom (instructed by the Treasury Solicitor) for Defendant/Appellant
JudgmentLord Justice Schiemann :Introduction
[1]Before the Court is a defendant’s appeal against a judgment of HH Judge Bruce Coles Q.C. sitting as a judge of the High Court. The defendant is the Highway Authority which designed and built the Cobtree traffic roundabout near Junction 6 of the M20 motorway. The claimant, Mr King, drove his motorcycle into the roundabout and was severely injured. The accident happened at about 2 am on July 2nd, 1994. Mr King was riding his Harley Davidson motorcycle along an exit or “slip road” off the A229 near Maidstone, Kent. As he travelled south along this slip road he came to the roundabout. He did not stop at the “Give Way” lines on the entry to the roundabout, but rode straight on into the island at the centre of the roundabout. In doing so he collided with one of three road signs (“the Turn Left Signs”) positioned on the island each of which indicated that he had to turn left.[2]He asserted, and the judge found, that the defendant had negligently designed and built this roundabout and that this negligence had caused the accident. The defendant submits that the judge was not entitled to come to either of these conclusions. The judge regarded the claimant as contributorily negligent to the extent of 50%. The defendant submits that if, contrary to the its primary submissions, the judge was entitled to find negligence and causation then the claimant’s contribution should be fixed at 80%.

Description of the Road

[3]I take the following description of the physical features from the judgment below.[4]The A229 is a dual carriage road with a central reservation. It passes under the M20 just beyond the point where Mr King left it to enter the slip road leading to the roundabout. As the A229 approaches the M20 it goes down a steady decline for at least 2 miles. If one wishes to go to Maidstone or to join the M20 at Junction 6 one leaves the A229 road and joins the two lanes which form this slip road. It is something of a misnomer to describe this road as a slip road because it is more substantial than one usually encounters leading off an unrestricted dual carriageway. The maximum speed limit for those, like Mr King, travelling south down the slip road towards the roundabout is 50mph.[5]The distance between the commencement of the slip road as it leaves the A229 and the roundabout is about 500 metres. 356 metres from the roundabout there was and is a Lane Designation Sign. This sign indicates that the road is about to divide – that the left hand lane goes to the Eastbound M20 and that the central and right hand lanes lead to the Westbound M20 or South to Maidstone. Mr King was riding in one of these last two lanes. The Lane Designation Sign is situated on the left hand side of the Southbound slip road.[6]On the other side, at a point 105 metres from the roundabout, there was an “Advance Direction Sign”. Mr King would have seen this from at least 100 metres before that. It is a large sign and the road was well lit. The sign showed an ovoid roundabout and an apparently separate carriageway going off to the left to join the Eastbound M20.[7]Some 50 metres from broken “Give Way” lines which marked the entrance to the roundabout the two lanes became three lanes and continued as such up to the roundabout. For those last 50 metres the short broken white lines which had been separating the two lanes were replaced by Hazard Warning Lines, namely, longer demarcation lines with closer intervals.[8]The last warning before the roundabout were the broken “Give Way” lines which ran straight across the three lanes. On the other side of these was the circulatory space round the roundabout. On the island itself, straight in front of the approaching driver, were the three Turn Left Signs - two black and white chevron boards with left directing markings and one circular “left turn” arrow. The arrow was white and mounted on a blue background and the chevrons were 400mm x 1200mm. Mr King crashed into one of the two chevron boards, namely, the one on the right.[9]As the slip road approaches the junction of the roundabout there is a slight dip in the road. Upon going into the dip the driver would momentarily lose sight of the carriageway immediately ahead - not however of the chevron signs or the circular left turn arrow.[10]The roundabout was circular and lit by sodium lights mounted on high level lampposts placed at intervals around the inside edge of the island and at intervals on the outside of the roundabout area. The slip road was lit by sodium lighting all the way down from the A229 and there was similar lighting to the South of the Cobtree roundabout so that to a motorist approaching down the slip road there was something of a proliferation of lights. As a result the lighting around the central island did not make the roundabout stand out immediately as a discrete physical presence. However, motorists who had been notified by the Advance Direction Sign of the approaching roundabout would have taken these approaching lights to indicate the location of that roundabout.

Description of the accident

[11]The following account of the accident is now uncontentious.[12]It had been raining prior to the accident and the road was damp – although the evidence does not support any conclusion that it was excessively wet.[13]It was 2am. Mr King rode down the slip road at about 50mph. The lights on the roundabout were on. He saw the Lane Designation Sign on the left. Mr King knew that he was approaching a roundabout and that he was just about on it. He looked to the right to see whether there was any traffic coming from there and saw that there was not. He did not intend to stop at the roundabout, if he did not have to. He wanted to merge into the traffic using the roundabout, to continue travelling around it and leave by the exit opposite the slip road without stopping or slowing down any more than he already had. He was not consciously confused by the road layout or the signage. There was no other vehicle on this stretch of the slip road at the time yet, oddly, he chose to go into the right hand/off-side lane rather than the middle lane.[14]When he got to the roundabout his speed was somewhere between 30-40mph. He did not slow down and went into and across the circulatory carriageway at this speed. The speed of Mr King’s motorcycle at the moment of collision with the road sign was less than that at which the roundabout could have been safely negotiated.[15]Mr King said in his statement that he could not recall seeing the chevron and keep left signs on the roundabout until he was right upon them and just about to crash and that he did not see the “Give Way” lines across the entrance to the roundabout. He said in his oral evidence that he did not remember seeing the Hazard Warning Lines. The judge’s findings as to design.[16]Mr King made a number of criticisms of the design of the approach road and roundabout and their maintenance most of which were rejected by the judge either as not being negligent or as not being causative of the accident. Mr King does not in this court seek to resurrect those matters. Some of the judge’s findings in relation to those matters are however still relevant when considering the submissions and so I should record them.[17]This slip road was a substantial road and the designer ought to have foreseen that vehicles would be approaching the roundabout at speed.[18]However, a driver travelling down that slip road is given ample warning of the fact that he is about to come to a roundabout. The signs on the roundabout were large enough and appropriately placed for his headlights to have picked them out. In so far as Mr King did not see them it was not because of their design qualities but because he was either going too fast or was not keeping a proper lookout to the front. It would not have been appropriate from a design or safety point of view to have installed “count down” signs or further “slow down” signs. The dip in the road did not contribute to the accident.[19]I now turn to those paragraphs of the judgment which led the judge to find in favour of the claimant and which are criticised by the defendant. 32. ... One key factor in the design of a roundabout is the angle at which the traffic approaching the roundabout meets the circulatory lane of the roundabout - the “Entry Angle”. The angle taken is that of the traffic coming into the circulatory system from the middle of the approach lanes. According to para. 6.1.4. of TA 42/84 “the entry angle should, if possible, lie between 20 and 60 degrees.” The Advice makes the point that “low entry angles force drivers into merging positions where they must either look over their shoulders to their right or attempt a true merge using their mirrors (with the attendant problems of disregarding the “Give Way” line and the generation of high entry speeds). High entry angles can lead to sharp braking at entries accompanied by “nose to tail” accidents, especially in rural areas. The best entry angle value is about 30 degrees.” The entry angle taken in the middle of the three lanes going into the roundabout (ignoring the segregated left turn lane) was sixty degrees and the angle for the right-hand lane was 65 degrees. This angle of entry is achieved by a combination of the location of the central island of the roundabout itself and by deflecting the traffic as it comes to the “Give Way” line at the entrance of the roundabout. This deflection is done by features of the road - primarily by the direction taken by the lane markings, by hatching and also, if possible, by the angle taken by the kerb on the right-hand side. When it was put to Mr Marshall (the defendant’s expert) in cross examination he agreed. ... 58(7). “As constructed and designed, the angle at which the right hand lane entered the roundabout was in excess of the design recommendations and there, was in effect, very little, if no (sc. any), deflection of the carriage way over to the left. …. This fact of a straight approach right up to the roundabout is also to be seen in the context that the slip road was coming around to the right/off-side as it approached this point and there had been no further reduction in the speed limit. In his evidence Mr King said “I do not think that there was any way I could have merged on to that roundabout safely” and it seems to me that what he was saying was that he was presented with this (about) 70 degree turn: he had been taken around slightly to the right and then not deflected back to the left so as to go into the circulatory system at an angle. Indeed, he also went on to say:
“To have merged onto the roundabout I would have had to stop and do a 90 degrees turn from that lane. I made no attempt to steer around the roundabout because I did not have a chance.”
It was not, of course, as if he was presented with a continuous barrier or hazard in front of him because…there is a curvature around to the left as the roundabout takes the shape of just that – i.e., a roundabout. But from the right hand lane this is not so obvious. … Mr Gregg [the claimant’s expert] describes this original construction as a “wrong and dangerous arrangement”. It was in conflict to the advice given in TA42/84 (see para.32 above).[20][Before continuing my citation from the judgment I interpose to explain that there had been two Safety Audits in the course of the design and construction of the roundabout and that there had been a third Safety Audit after the slip road had come into use and after the accident] This was a point picked up on the Third Audit and it was the recommendations of this Audit which led to the alterations of the road markings. The audit observation is ... as follows ‘The approach to the roundabout give-way is currently delineated as three lanes and is relatively square to the circulatory carriageway. (The judge’s underlining) In off peak hours, traffic approaching on the offside-most lane tends to cut across to the middle lane before entering the circulatory carriageway. In peak hours, when stationary traffic impedes such free entry movement drivers from all three lanes are unable to pull onto the circulatory carriageway concurrently without conflict” ... It is true that the point being made by the audit is not that the angle of entry is too high, but that difficulties were being experienced with cars in the outside lane cutting across the middle lane before entering the circulatory carriageway - but it seems to me that that is really making the same point : because there is no deflection signed, drivers are themselves making the deflection movement so as to place themselves at a better angle for entering the roundabout.

The first Audit also picked up this point in the following terms:

“12. Both of the roundabouts have some high speed approaches with little deflection and although they may meet the national design standards, our experience is that they will give safety problems.”
Finally I note that the Kent County Council observed “the lack of deflection for the north south traffic at (this) large roundabout.” 61. The point which has caused me the most difficulty ... is that relating to the lack of any real deflection of the right hand carriageway into the circulatory system and the fact that drivers coming down the slip road at speed and up to the roundabout (especially in that lane) are met with a very sharp turn - almost a 90 degrees turn - and this at the end of a road where the maximum speed is 50 mph. This absence of deflection was something which concerned two sets of auditors and is something which is emphasised by Mr Sharkey and Mr Gregg (the Claimants’ experts). It was also something which made an impression on the Claimant - “I don’t think there was any way in which I could have merged on to that roundabout safely” he said. Mr King was, I should say, a witness of truth. ... The way the road ran straight up to the “Give Way” signs without any deflection was contrary to the Advice and to what a reasonably competent engineer would have provided. it therefore follows that I think there was a breach of duty in that respect. 62. Evidence was given about the lack of any “slow down” signs or “count down” signs along the slip road. I ... accept the expert evidence that as a matter of design and as a matter of making compromises and judgments to best suit all the competing factors which a designer must consider, it was not negligent not to include these signs. But given this fact it seems to me to have been a breach not to have taken into account the speed of vehicles approaching the roundabout when considering the layout and configuration of the road as it came and entered the circulatory system. It does not seem that this was actually taken into account. That there was really no deflection at all at the end of the “run” up to the circulatory system such as was put in place shortly after the accident was, I conclude, a defect in the design which a reasonably competent engineer when coming to design this junction ought not to have incorporated. To have had a deflection signalled (as was provided in the post accident layout) would have mitigated the potential problems which may arise from a fast downhill approach. 63. The next question is whether there was a causal connection between this breach and the occurrence of the Claimant’s accident. In my view there was. ... I have reached the conclusion that these factors of a high angle of entry and high speed on the road with the added factor that (sc. the) road actually went away to the right as it came up to the circulatory system combined to be a cause of Mr King going straight over the roundabout carriageway and crash (sic) into the central reservation rather than steering round to the left and joining it in a “merging” manoeuvre.” The first Audit also picked up this point in the following terms: The submissions.[21]Mr Ian Burnett Q.C. and Mr Ashford Thom for the appellant/defendant submitted primarily that the judge was not entitled to find that the design was negligent and, even if he was, he was not entitled to reach the conclusion that this negligence was a cause of the accident. Should neither of those submissions find favour, he submitted that the legal test applied by the judge was wrong and that his allocation of contributory negligence was too low. Mr Wilby Q.C. for the respondent supported the judge’s reasoning and submitted that this court should not allow the appeal unless satisfied that the judge was plainly wrong.

Discussion

[22]“The principal objective of roundabout design is to secure the safe interchange of traffic between crossing and weaving traffic streams and minimum delay. ...Design ... is a trade off between operational efficiency, minimising delays at junctions, and various safety aspects.” (See TA42/84 para 3.3 and para 3.4.) It is common ground that the designer must guard against the possible negligence of others when experience shows such negligence to be common. (See per Lord du Parq in London Passenger Transport Board v Upson [1949] A.C. 155).[23]A roundabout can be a hazard in a number of ways. One of these is where the roundabout itself is not seen by the oncoming driver until too late with the result that he either runs on to it (which is what happened here) or he performs some sudden manoeuvre which harms either himself or some third party. In order to try and prevent such accidents there is provision in the design standards and advices for warning signs and lighting. In the present case it seems to me beyond argument on the judge’s findings that the approaching driver had ample warning of the approaching roundabout and either knew or ought to have known of its location. The judge, as I read his judgment, was of the same view and did not consider that there had been a breach of any duty to give adequate warning of the location of the island itself.[24]Another way in which a roundabout can be a hazard is because of the merging of traffic coming from different directions. The greater the speed at which the traffic is moving the greater the chance of collision. On the other hand the more one slows down the traffic the less is the capacity of the island and the more queues build up. One possible hazard is that drivers approaching a roundabout, particularly on the inside lane, see the possibility of not slowing down at all but driving straight through the roundabout. This can endanger traffic already on the roundabout, particularly if that traffic itself is moving at speed. The Advice Note therefore contains advice on the amount of what is known to traffic engineers as entry deflection which is to be imposed on vehicles entering roundabouts so as to slow them down. It is common ground that this is of no direct relevance in the present case.[25]A third way in which a roundabout can be a hazard is described in paragraph 6.1.4 of the Advice Note which is quoted by the judge in his paragraph 32 and referred to again in his paragraph 58.7. It can be seen that the author of the note has two hazards in mind. The first arises from two low an entry angle. It is of no arguable present relevance. The second arises from too high an entry angle. It is that which the Judge thought was in play in the present case.[26]We were not taken to the material which underlay the measuring of the entry angle. However, on any basis it is clear that the entry angle in the present case was on the high side, being 65 degrees from the middle of the approach lanes which is the point to which the advice in the Note (that it should be between 20 and 60 degrees) relates.[27]I do not find it necessary in the present case to address what seems to me a difficult point, namely, the precise nature of a Highway Authority’s duty when there are conflicting desiderata all competing for attention. Submissions were made by Mr Burnett as to the applicability of what was decided in Stovin v Wise and Norfolk County Council [1996]. We did not ask Mr Wilby to address us on them and I think it inappropriate to rule upon them.[28]I am prepared to assume in Mr King’s favour, without expressly accepting what the judge said, that the design of the approach lane to this roundabout was not merely above what was recommended in the Advice note as one to be achieved “if possible”, but also such as might entitle some persons to complain in some circumstances of a breach of a duty owed to him not to be negligent in the design of the roundabout and its approaches.[29]However, conscious as I am of the reluctance of this court to upset a finding of a trial judge, it seems to me that he erred in finding, in effect, that the defendant’s failure to provide for a marginally smaller entry angle was a cause of this accident. The cause seems to me to be entirely Mr King’s failure to register the Hazard Warning Lines, the Give Way Lines, the Three Left Turn Signals or indeed the island itself.[30]Mr King knew at 2am that morning that he was just about on the roundabout, as the judge found, and that there was no other traffic. He could and should have banked and gone round the roundabout either at the speed at which he was travelling or some lesser speed. Mr Wilby accepted that Mr King could have banked if he had appreciated that the roundabout was so close. Instead, with more than common lack of attention to what he was doing, he went straight on. The merging referred to by Mr King and the judge was simply not required. There were, as he apparently knew, no other vehicles about, either on the roundabout or approaching it on his inside. Any duties owed by the designers to people in Mr King’s situation seem to me to have been amply fulfilled. The roundabout was well lit and amply signposted as was the fact that he should turn left when he reached it. To say, as he did in the passage quoted by the judge, that he did not have a chance to steer round the roundabout seems wide of the mark and at likely odds with the agreement between the experts that at the moment of collision with the road sign the speed of Mr King’s motorcycle was likely to have been less than the maximum speed at which the junction could be negotiated.[31]I understand Mr Wilby’s suggestion that if the road markings had been different so as to show an entry angle of, say, 50 degrees then a motorcyclist who saw them would have been steered round the island as it were. However, it seems of little relevance to the present case since Mr King was apparently not noticing road markings any more than the presence of the island as he himself admitted. Putting it another way, had the defendant marked out an entry angle of, say 50 degrees the accident would still have happened.[32]I consider that the judge fell into error in supposing that the safety Audit material supported his conclusion that the design of the roundabout and its approaches was negligent. When looking at that material I have born in mind that amongst road traffic engineers, deflection is a term of art and would have been used as such. I have looked at the passages mentioned by the judge and drawn to our attention. None of the passages written before the accident contain any suggestion that the entry angle of any of the lanes of the slip road should be altered either by road marking or in any other way. The stage 3 Safety Audit referred to by the judge was produced after the accident and therefore there can be no suggestion that the defendant ignored it prior to the accident. Moreover, as he points out, it does not make the point that the Claimant sought to make.[33]The judge said in paragraph 62 of his judgment that the speed of vehicles approaching the roundabout was not taken into account when considering the layout or configuration of the road. I confess this sounds inherently improbable as phrased and it has not been submitted that the evidence which we have been shown supports this finding. Indeed it is clear that the likely speed of the traffic approaching the roundabout was the subject of repeated mention in the letters passing between the County Council’s highway engineers and the consultants advising the Department.[34]I of course bear in mind that the fact that, as the judge found, Mr King was negligent and partly to blame for the accident does not involve a holding that the defendant was not to blame. However, on the findings of the judge it is in my judgment clear that Mr King was driving in a way which fell outside what Lord du Parq described as negligence which is common. If that be correct then it would not be regarded by a competent road traffic engineer as something for which design provision ought to be made.[35]It thus seems to me that there was no negligence on the part of the department of which Mr King can complain and that his unfortunate accident was not caused by the design adopted by the Department. In those circumstances, if my Lords share my opinion, it is not necessary for me to address the question of contributory negligence. I would allow the appeal and set aside the order of the judge.

Lord Justice Laws:

[36]I agree that this appeal should be allowed for the reasons given by Schiemann LJ. In particular it seems to me inescapable that the sole cause of this very grave accident was Mr King’s lack of attention to what he was doing, and that there was no negligence on the part of the Department of which he can legitimately complain. Schiemann LJ has dealt with these matters at paragraphs 29-35 of his judgment. I cannot improve on the reasoning in those paragraphs, with which I am in complete agreement. Lord Justice Sedley[37]The claimant has accepted throughout this case that if the defendant is liable, the claimant must still accept half the blame for the accident because of his evident inattention to the road layout as he approached the roundabout. But his case was that the fundamental cause of the accident was that the layout was deceptive, and the judge accepted his case. The defendant’s case before us has been that the design and layout created no hazard with which a reasonably attentive driver could not cope; and that, even if they did, it was the claimant’s inattention to it and not the hazard itself which bore by far the greater share of blame for the accident.[38]For my part I would not be willing to upset the careful finding of the judge that the configuration and surface-marking of the road in relation to the roundabout created an unnecessary and unacceptable hazard. That it was unnecessary was demonstrated by the re-marking of the surface which Kent County Council undertook not long after the accident when the road and roundabout became vested in them, so as to steer traffic in the offside lane into the flow round the roundabout. That it was unacceptable was, in my respectful view, a judgment open to the trial judge and one with which we are not justified in interfering.[39]The relationship of the outer lane to the roundabout on the scale plan, measured in the standardised way by producing to the perimeter of the roundabout the line described by the final section of outer lane marking and measuring the angle it makes with a tangent drawn at that point, gives a reading some 5 degrees outside the advised tolerance. But much more important, it seems to me, is that the plan and photographs show an offside lane which is practically square to the roundabout. Told to expect a roundabout, drivers encountered something more like a T-junction. All of this was as perceptible in advance to the defendant as it was in retrospect to the claimant.[40]We know that Mr King was driving at a safe speed as he approached and entered the roundabout. He knew that the roundabout was coming up, and the judge found that he looked to his right as he entered it. On the judge’s findings the reason why he ran straight on to the roundabout was a combination, in equal parts, of the impression given to him by the layout and road-signs that he was entering a left-hand flow and his failure to observe that he was not. In other words, Mr King was found to have driven into a trap which greater vigilance would have enabled him to avoid.[41]I do not doubt that the decision might have gone in the defendants’ favour, essentially on the ground that the layout, while not ideal, was clear enough to enable an ordinarily vigilant motor-cyclist to negotiate the roundabout safely. The judgment of Lord Justice Schiemann demonstrates, if I may say so, how unassailable such a conclusion would be. But I do not think that this justifies us in displacing a different judgment of fact formed by the judge. On such a question we are no likelier to be right than he is. For my part I would dismiss this appeal.

Order

Appeal allowed; Appellant do pay Respondents costs; such costs to be assessed by a costs judge. (Order does not form part of the approved judgment)