Fagan v Jeffers [2005] EWCA Civ 380

Case No B3/2004/1461[2005] EWCA Civ 380
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON CIVIL JUSTICE CENTRE
(HIS HONOUR JUDGE RICH QC)
Venue Royal Courts of Justice, Strand LondonDate Wednesday, 9 March 2005
WC2A 2LL
B E F O R E:
LORD JUSTICE THORPE
LORD JUSTICE SCOTT BAKER
MR JUSTICE WILSON
Between
PATRICK FELTRIM FAGANRespondent-v-
Between
GEORGE JEFFERSAppellant
(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 MARK STEPHENS (instructed by Trent & Co, London EC4A 3DL) appeared for AppellantMR J SWIRSKY (instructed by Blakemores, Birmingham B3 2AT) appeared for RespondentJUDGMENTWednesday, 9 March 2005

LORD JUSTICE THORPE:

Mr Justice Wilson will give the first judgment.

[2]MR JUSTICE WILSON: The first defendant appeals against an award of damages made against him in favour of the claimant by His Honour Judge Rich QC, sitting in the Central London County Court on 23 June 2004.[3]The proceedings arise out of a collision between a motor scooter which was being driven by the claimant and a car which was being driven by the first defendant upon Battersea Bridge Road, London SW11, by the junction with Kersley Street, at about 7.20 pm on 6 January 2000. As a result of the collision the claimant suffered significant injuries.[4]The first defendant was not insured against liabilities arising out of his driving the car and he was in due course convicted and sentenced in that regard. As a result of his lack of insurance, the Motor Insurers Bureau was added as a second defendant to the claim. The Bureau was represented at the hearing before the judge but takes no part in this appeal.[5]The claimant's damages were agreed in the sum of £37,500 and the judge was asked to rule only on the issue of liability. His ruling was that the collision was the result of negligence on the part of the claimant and of the first defendant in equal shares. So he entered judgment for the claimant against the first defendant in the sum of £18,750 and gave the claimant permission to apply to enforce the judgment against the Bureau in the event that the first defendant failed to satisfy it.[6]This appeal is brought by the first defendant (to whom it will be convenient hereafter to refer as "the defendant") against the ruling that he was in any way responsible for the collision. He contends that the judge was wrong to hold that he was in any way negligent, and alternatively was wrong to hold that any negligence on his part was as substantial as the contributory negligence of the claimant.[7]The claimant brings no cross-appeal.[8]The collision occurred when the claimant was driving south down the Battersea Bridge Road and when the defendant, who had been driving north up that road, was crossing the south-bound part of the road in order to turn right, in other words eastward, into Kersley Street.[9]It is important to understand the layout of the south-bound carriageway on Battersea Bridge Road at and around the junction with Kersley Street. Thirty four metres further south is a substantial cross-roads, controlled by traffic lights, between Battersea Bridge Road, running north/south, and Battersea Park Road, running east/west. Back up at the junction with Kersley Street the words "KEEP CLEAR" are painted in large white letters on Battersea Bridge Road, facing south-bound traffic. The premise behind the instruction is that, as on the occasion of this collision, south-bound vehicles are often stationary throughout the 34 metres which lead down to the lights at the cross-roads with Battersea Park Road; and the thinking behind it is that, if following traffic can be prevented from banking up immediately behind them, namely across the mouth of the junction with Kersley Street, there be will be no obstruction of such north-bound traffic as is intended to turn right into Kersley Street.[10]Whatever the width of the south-bound carriageway on Battersea Bridge Road in the 34 metres which run south from the junction with Kersley Street to the traffic lights, the width of that carriageway just north of the junction is such as to enable two motor vehicles to proceed abreast. The claimant and the defendant agreed in evidence that, in the light of the stationary traffic running all the way south from the junction to the traffic lights, at least one motor vehicle had, in obedience to the instruction to "KEEP CLEAR", halted at a point level with the northern kerb of Kersley Street. But the judge had to resolve an issue as to whether, as the claimant contended, one such vehicle was stationary there or whether, as the defendant contended, two vehicles abreast were stationary there. The judge accepted the defendant's evidence on that point. Both vehicles were vans.[11]Notwithstanding the presence of two stationary vehicles abreast at that point, the judge found that there was "adequate" room for a two-wheeled vehicle, such as that of the claimant, to proceed between the nearside kerb of the south-bound carriageway and the nearside of the stationary vehicle which was closer to the kerb and to drive southwards across the KEEP CLEAR area at the mouth of the junction with Kersley Street.[12]Such was indeed the route which the claimant took. He saw that there was adequate room for him to drive his scooter between the kerb and the nearside of the stationary vehicle on to the KEEP CLEAR area; that there was nothing at the far side of the area to obstruct his exit from it, with the result that there was no risk that he would have to stop on the area and so become in breach of the instruction to keep it clear; but that the lights against south-bound traffic at the junction with Battersea Park Road were at red, with the result that he would there have to come to a halt. Thus, at (so the judge found) a low speed, the claimant drove his scooter on to the KEEP CLEAR area.[13]Meanwhile the defendant was driving a Ford Escort motor vehicle across the area from the north-bound carriageway into the mouth of the junction with Kersley Street.[14]It was dark but both the scooter and the car were displaying headlights. By the time when each party saw the other, it was too late to avoid the collision.[15]The front of the claimant's scooter collided with the nearside front wing of the defendant's vehicle. The claimant fell to the ground either in or very close to the northern part of the mouth of Kersley Street.[16]The judge gave the following reasons for holding that the collision had been caused by the negligence of both parties. "10... the defendant, in my judgment, although given the opportunity to turn right in the sense that his path is not obstructed because the stationary lines of traffic have positioned themselves in order to enable him to pass across them, is not entitled to rely upon there being no further line which is in the course of movement and whose exit from the far side of the junction is not obstructed by stationary vehicles between the junction and the traffic lights. A driver who wishes to make that movement of going through the 'Keep clear' zone in order to enter Kersley Street must, in my judgment, exercise caution and travel in a way which has proper regard for the possibility of there being further traffic flowing into the junction, not obstructed in its exit by any vehicles on the far side of the junction. It should, in my judgment, have been apparent to the driver of the vehicle (the defendant) entering the junction that, even if there were two lines of traffic, there was room for a third line of two-wheeled vehicles, that he should have entered the junction conscious of that and capable of taking avoiding action if a vehicle entering the junction from the north appeared. He says that his visibility was obscured by the fact that the two front vehicles in the waiting lines were both vans through which he could not see. If he observed that that was indeed the case, he had the greater obligation to take account of the obstruction to his line of sight so constituted.11. In my judgment, answering the challenge that Mr Stephens put to the court on his behalf, 'What did the defendant do wrong?', I would answer it by saying, he entered the junction without such caution as was necessitated by the presence of stationary vehicles obstructing a view of a third line which was practicable for the passage of two-wheeled vehicles and in so doing failed to exercise a proper care for the presence of such vehicles on the road.12. That fact, however, does not, in my judgment, acquit the claimant of any responsibility or fault for the accident that so arises. Although, in my judgment, he did have a right to proceed on the inside of these lines of traffic towards the traffic lights, passing through this junction on the way, and although I accept that he was doing so at a low speed, having regard to his awareness that he was going to have to halt at the traffic lights with the Battersea Park Road, I think that he did have an obligation also to be aware that there would be the risk of vehicles using the gap that had been created in the queue of stationary vehicles in order to access Kersley Street and that the opportunities for vision by such vehicles would be restricted. That required on his part, likewise, a degree of caution which, I think it is to be inferred, must have been lacking in his approach to the junction." At the conclusion of the judgment Mr Stephens, counsel, then as now, for the defendant, asked the judge for clarification of one point. He said to the judge:
"You have found equal responsibility in this case and you did indeed answer my challenge as to what he should have done. Your Honour, what I seek further clarification of is, in practice, what he should have done to avoid the accident, ie should he have come to a stop or should he have gone more slowly?"

The judge replied:

"I do not know that it was necessary for him to come to a stop. That depends on a detailed consideration of the precise conditions, as to which I have not got any evidence. But it seems to me that almost certainly, if he had been looking and exercising proper caution, he could have avoided the accident, just as I think the Claimant might have."
[17]In appealing against the judge's conclusion that he was in any way negligent in relation to the collision, the defendant, through Mr Stephens, makes four linked points.[18]The first point is that the judge set at too high a level the standard of care which he expected of the defendant. Mr Stephens rightly stresses that the claimant was undertaking a dangerous manoeuvre in proceeding on to an area marked KEEP CLEAR, at the edge of which two vans, abreast of each other, were stationary and necessarily obstructed his vision of any vehicle which was intended to turn across the area into Kersley Street. But, equally, the defendant was undertaking a dangerous manoeuvre. He was moving from his side of the road across the other side of the road into Kersley Street; and, although the two vans were stationary, he must have been well able to notice that the distance between the nearside van and the kerb was wide enough to enable a two-wheeled vehicle to proceed past that van and into the area.[19]My view is that, when opposing traffic has stopped so as to enable a driver to cross in front of it in order to turn into a side street, the inherent danger of the manoeuvre reasonably requires that driver to proceed with the utmost care and, in particular, not to complete the crossing until, often by a mixture of crawling and peering, he has put himself into a position where he can be satisfied that no vehicle is about to pass the stationary traffic on the inside on to any part of the area which he needs to cross. Such is not a counsel of perfection; it is a regular feature of life at the wheel for everyone disposed to take reasonable care of the safety of himself and of others.[20]In this regard Mr Stephens heavily relies, as he did before the judge, upon the decision of this court in Clarke vWinchurch [1969] 1 WLR 69. By a majority the court held that a car driver, who was travelling across the front of a stationary bus in order to pull to his right and to proceed down the road in the direction opposite to that in which the bus was facing and who collided with a moped which had overtaken the bus on its offside, had in no way been negligent. The judge distinguished that decision on the basis that the fact that the bus was stationary was a clear indication to the driver of the moped that a vehicle was crossing in front of it, whereas in the present case the fact that the vans were stationary was an indication to the claimant only that they could not then exit from the KEEP CLEAR area and so were obeying that instruction and thus that, at most, a vehicle might be crossing in front of them. While not disassociating myself from that distinction, I believe that the greater difference between the two cases is that, in Clarke v Winchurch, the car was only about a yard beyond the offside of the bus at the time of the collision and that, in the words of Phillimore LJ at 74D, "the first defendant came out extremely slowly and extremely carefully. In effect he inched his way out beyond the line of the bus." There is no comparable finding of extreme circumspection on the part of the defendant in our case. Indeed it is clear that, had there been such a finding, the judge would not have held him to have been negligent.[21]The second point is that there was no evidence to support the judge's conclusion that the defendant failed to exercise proper caution. In this regard Mr Stephens relies in particular on the judge's answer to his enquiry following judgment. He says, albeit more politely, that it is not good enough for a judge to say that what the defendant should have done "depends on a detailed consideration of the precise conditions, as to which I have not got any evidence." To be precise, however, the judge was saying only that whether it was necessary for the defendant to stop depended on that consideration. In my view it was more than adequate for the judge to have explained in his judgment that the nature of the defendant's proposed manoeuvre, the overt practicability for a two-wheeled vehicle to proceed into the area and the substantial obstruction by the vans of the defendant's sight of any such vehicle together gave rise to a conclusion that he had exercised insufficient care in effecting it. I am afraid that I cannot accept Mr Stephen's oral submission this morning that the judge was expecting the defendant to react to a danger to which it was impossible for him to react.[22]The third point is that the judge's conclusion was perverse. This is unarguable.[23]The fourth point is that the judge's reasons for holding the defendant negligent were inadequately articulated. It will already be clear why I cannot subscribe to this complaint.[24]In my view the defendant gives himself away when, in his signed statement for use at the hearing, he wrote "I braked as soon as I was aware of the scooter which had entered my space". His reference to "my space", reflective of other passages in his statement, suggests to me that he regarded the situation as not unlike one in which he was permitted by a green filter light to cross the KEEP CLEAR area and in which, by contrast, the claimant was subject to a red light against entry into it. In truth, however, the area was no more the defendant's space than it was the claimant's space. In the particular circumstances which obtained at that moment, it was available for the use of each of them, although the inherent danger of such use should have been manifest to both of them. In that the defendant regarded the area as his space, it is, I fear, in no way surprising that the collision occurred.[25]Mr Stephens proceeds to complain that, if there was negligence on the part of the defendant, the judge was wrong to equate it with that of the claimant. It is always difficult to persuade this court to interfere with a judge's apportionment of liability. In any event I consider that the bald facts of the present case yield no reason whatever for departure from a conclusion of equal responsibility.[26]For my part, I have not been persuaded, even by the admirable Mr Stephens, that the judge's conclusions were wrong in any way. As it happens, I am actively of the view that he was right. I would dismiss the appeal.

LORD JUSTICE SCOTT BAKER: I agree.

LORD JUSTICE THORPE: I also agree. (Appeal dismissed; the Appellant is to pay the Respondent's costs of the appeal).