Lamoon v Fry [2004] EWCA Civ 591

Case No B3/2004/0188

[2004] EWCA Civ 591

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM TRURO COUNTY COURT

(MR RECORDER PATTERSON)

Venue Royal Courts of Justice

Date Thursday, 29th April 2004

Strand

London, WC2

B E F O R E:

LORD JUSTICE PETER GIBSON

LORD JUSTICE RIX

LORD JUSTICE LONGMORE

Between

MATTHEW PETER LAMOONRespondent

-v-

Between

JOHN CLIFFORD FRYApplicant

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MR ADRIAN PALMER QC (instructed by Messrs Ford Simey, Exeter EX1 1EJ) appeared for Applicant

MR MICHAEL MELVILLE-SHREEVE (instructed by Messrs John Boyle & Co, Redruth TR15 2SB) appeared for Respondent

J U D G M E N T

LORD JUSTICE PETER GIBSON:

[1]I will ask Lord Justice Rix to give the first judgment.

LORD JUSTICE RIX:

[2]This appeal arises out of a collision between a motor car and a cyclist. The car was being driven by the defendant, Mr John Fry, who today is the appellant in this court. The bicycle was being ridden by Mr Matthew Lamoon, the claimant and today the respondent. The accident occurred at about 7.00pm on a fine dry summer evening in June 1999. The claimant was then 18 and he was cycling home from work. He knew the road well. The judge below, Mr Recorder Patterson, concluded that at the time of the accident he was on the wrong side of the road, cutting the corner of a shallow bend. The defendant, then 38, was in a Nissan Primera, driving at about 40 miles an hour, returning home alone after viewing a property in Chacewater.

[3]The scene of the accident was a country lane, known as Station Road at Chacewater in Cornwall. The cyclist was riding towards Chacewater and faced a shallow right-hand bend. The motorist was driving towards Blackwater and faced a shallow left-hand bend. The road was an unclassified unmarked road, relatively level with slight twists and curves to it. The police officer (as I assume it was) who drew up the accident report form at the scene described it as a single track road, and so it appears to be from the photographs before this court. Those photographs indicate from the wear markings on the road that most cars appear to drive along it more or less in the centre of it.

[4]On either side of the road, typically, were hedges which in June had grown considerably, and whose foliage was extending into the road on either side by a matter of a foot or two. The judge does not record the width of the road, but we have been told -- and this is common ground -- that a scale measurement of the drawing before the court showed the road to be 4.5 metres wide at the point of the accident. It is also common ground, as it was accepted at the trial, that two cars could pass one another. It follows, however, that with vegetation extending into the road on both sides that there would not be a great deal of room to spare. If of course it was farm traffic or caravans, then there would be even less room. Much would depend, where two motor vehicles approached one another at that bend, on how close they were able to get into the verge side and of course how fast they were travelling.

[5]The main issue before the judge was whether the cyclist was on the wrong side of the road, only about three feet from the motorist's nearside, which was Mr Fry's evidence, or on the other hand towards the middle of the road but on his own side, which was Mr Lamoon's evidence. The cyclist however, who was rendered unconscious by the accident, did not have a good memory of things, and for this and other reasons the judge concluded that at the moment when the two approaching parties first saw one another, the cyclist was probably no more than about three feet away from the driver's nearside verge.

[6]The judge made no finding about distances, but the driver's evidence, which in other respects the judge appears to have been willing to accept, was to the effect that the distance he travelled from first seeing the cyclist to the point of impact was some 13 to 15 metres. The cyclist was travelling at about 14/15 mph and they would have been about 20 metres apart when they first saw one another. It appears that at the last moment both parties tried to take evading action, but unfortunately, and perhaps instinctively, in the same direction. The cyclist, who was in any event cutting the corner and would have his wheel turned to the outside of the bend, appears to have turned further back in the direction of that outside, which would be his own nearside, and the driver also turned in the same direction, that is to say, to his offside. The cyclist was clearly at fault in being on the wrong side of the road. But as the judge himself said:

"But what of the motorist?"

He continued:

"Was it safe to travel at the speed at which he was travelling, whether that was 40 miles an hour or just above or just below? He does not appear to have slowed for the bend, he was in fourth gear, I think he said, and he had very little time on seeing the cyclist to take avoiding action or to brake. True it is that he would not have expected a vehicle, whether it be a cyclist or any other sort of vehicle, coming towards him on the wrong side of the road, but had he been driving more slowly, it seems to me that the likelihood is that this collision might have been avoided because the cyclist would have an opportunity to get back on his own side of the road and the car might have slowed down and kept to his own side."

The judge then went on to apportion responsibility in these terms:

"In those circumstances I have to apportion blame and I do so on the basis of culpability, although it may be an academic distinction, rather than causation. My view is that the cyclist was primarily responsible for this collision and I apportion his blame at 60%. But the motorist was also partly to blame because of the speed which he was doing in the circumstances with the restricted view that these bushes provided and I apportion his blame therefore at 40%. That applies both to the claim and the counterclaim."

[8]The judge in those passages does not expressly say that the driver was negligent, but that is the implicit effect of his reasoning. He was negligent because he was driving too fast for the conditions at the time and did not brake for the bend.

[9]On this appeal -- which started life today as an application for permission to appeal, but permission has been granted -- on behalf of Mr Fry, the motorist, Mr Adrian Palmer QC submits that the judge was in error. The road had a speed limit of 60 miles an hour. It is true that at 40 miles an hour the Highway Code stopping distance is 36 metres. But if a motorist on that road had to be travelling at a speed at which the stopping distance was within the sighting distance which the motorist had, then he was restricted to a speed of only some 20 to 25 miles an hour. The judge, however, did not find what a safe or non-negligent speed was, and Mr Palmer's submission is that a speed of some only 20 to 25 miles an hour is simply not realistic. Above all, Mr Palmer submits that if the cyclist had been on the correct side of the road, the accident would never have happened. For that reason the judge should have found both that there was no negligence on the part of the driver and also that in any event there was no causation; in that, even if the motorist had been driving at a slower or safer speed, the parties were so close to one another when they were first able to see one another that the accident could not in any event have been avoided. Mr Palmer draws particular attention to the (as he would submit) tentative language in which the judge, in the first of the two passages which I have cited above, considered whether at a slower speed the parties would have had an opportunity to avoid one another.

[10]Finally, Mr Palmer submits that even if there was negligence and causation, nevertheless, for the same reasons as he underlined in respect of his submissions in those two contexts, the judge was simply wrong to have apportioned responsibility as much as 40 per cent on the part of the motorist. He submitted that it should have been no more than 20 per cent.

[11]On the other hand, on behalf of Mr Lamoon, the cyclist, Mr Michael Melville-Shreeve submits in essence that these arguments had all been presented to the judge and resolved, with the assistance of the evidence, against the motorist. He points out that the judge plainly found that the motorist was travelling at an unsafe speed and had failed to slow for the bend, and that that was of extra importance, given the more limited visibility due to vegetation on that summer evening. He submitted, as he had done below, that although he accepted that two cars could pass one another, nevertheless a motorist on that road had to be prepared for all kinds of eventualities, such as pedestrians or joggers on the wrong side of the road, wide farm vehicles or caravans and so forth. The judge's finding that 40 miles an hour without braking was too quick for those conditions was a finding of negligence.

[12]So far as causation was concerned, speed was a factor of time and with lower speed and more time the parties could have avoided one another. The judge was satisfied that on the balance of probability there was a likelihood that that could have happened and that was sufficient to show causation.

[13]So far as contributory negligence is concerned, while candidly accepting that the judge's division might have been generous in favour of his client, he submitted that nevertheless it was not possible to say that the trial judge was wrong.

[14]In my judgment, these submissions of Mr Melville-Shreeve have the better of the argument. I am satisfied that the judge did make a finding of negligence against the motorist by finding that 40 miles an hour, without slowing for the bend, given the conditions and the restricted vegetation, was simply too fast.

[15]So far as causation is concerned, I am similarly satisfied that it is impossible to say that the judge was wrong to conclude that the excessive speed was a cause of the collision. I accept Mr Melville-Shreeve's submission that, albeit, as the judge found, the motorist was properly keeping to his side of the road while taking this bend, nevertheless on such a road he had to be aware of the possibility of other users of the road who may be at risk if he drove too fast for those conditions. At a slower speed, alive to that danger, he could well have avoided a collision, even if he could not have stopped within the distance. It was for the judge to assess that matter: he assessed it as probable, and I cannot say he was wrong to do so.

[16]So far as contributory negligence is concerned, I am conscious of all those authorities which emphasise that, save in exceptional circumstances, the assessment of the trial judge is one for him and that his view as to the appropriate percentages cannot be interfered with by this court unless they lie wholly outside the range of legitimate possibilities. I do not consider that this is one of those cases where the judge can be said to have made an error of law in his assessment, even though, speaking for myself, I would agree with Mr Melville-Shreeve's concession that the division of responsibility does appear to have been a generous one so far as the cyclist was concerned.

[17]For all these reasons, I would dismiss this appeal.

LORD JUSTICE LONGMORE: The judgment of Mr Recorder Patterson in this case has been criticised by Mr Adrian Palmer QC on the grounds: (1) that there was no basis for a finding of negligence; (2) that there was no basis for a finding that the negligence which the judge found was a cause of the accident; and (3) that the apportionment was wrong.

[19]This was a short, though not completely straightforward, case. Naturally enough, the Recorder gave an extempore judgment and expressed his reasons shortly. We are told, by Mr Melville-Shreeve, that the Recorder played a considerable part in the arguments put by counsel in the course of their closing submissions and that all the points put by Mr Palmer to us this morning were fully debated.

[20]In spite of Mr Palmer's cogent arguments, I am not in any way convinced that the Recorder was wrong on his conclusions, either on negligence or on causation.

[21]As for apportionment, Mr Melville-Shreeve engagingly admitted that the apportionment was a generous one from the point of view of his client. So it was, but not one with which this court could possibly interfere.

[22]I agree with everything that Lord Justice Rix has said and would dismiss what is now this appeal.

LORD JUSTICE PETER GIBSON: In paragraph 132 of the Highway Code it is stated:

"Take extra care on country roads and reduce your speed at approaches to bends ... Be prepared for pedestrians, horse riders and cyclists walking or riding in the road."

[24]In my judgment, there was material before the Recorder on which he could properly reach the conclusion which he did, that the driver, Mr Fry, was driving too fast in the particular circumstances of the road at the particular point at which the accident occurred and that, accordingly, he was a cause of the accident which occurred.

[25]Despite the admirable argument of Mr Palmer for Mr Fry, and despite the realistic acknowledgement by Mr Melville-Shreeve for Mr Lamoon that the Recorder had been generous to his client, for these and the reasons given by my Lords, I too would dismiss this appeal.

ORDER

Application for permission to appeal granted; appeal dismissed with costs; appellant's costs to be subject to a detailed assessment. (Order not part of approved judgment)