Judd v Hemingway [2006] EWCA Civ 1180

Case No B3/2006/1081[2006] EWCA Civ 1180
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN’S BENCH DIVISION
(HIS HONOUR JUDGE SEYMOUR QC)
Venue Royal Courts of JusticeDate Wednesday, 26 th July 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE WARD
LORD JUSTICE CARNWATH
Between
JUDDAppellant- v -
Between
HEMINGWAYRespondent
(DAR Transcript ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR A GLENNIE (instructed by Messrs Proddow Mackay, Walsh Court, 10 Bells Square, SHEFFIELD, S1 2FY) appeared for Appellant. for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
J U D G M E N T

LORD JUSTICE WARD:

[1]This accident occurred at the junction of High Road, Whetstone, in Totteridge Lane, North London. The applicant was driving his Honda motorcycle towards Barnet at a speed the judge found to be 50 miles per hour when he collided with the defendant’s seven-tonne tipper truck at about the front near side wheel as the lorry travelling from Barnet was completing its manoeuvre to turn right into Totteridge Lane across the path of the oncoming applicant.[2]The high road is a dual carriageway each with three lanes and each about nine metres wide. The point of impact was in the middle lane but very close to the notional white lane dividing the nearside lane from the middle lane; in other words, the lorry had traversed nearly six metres across the westerly carriageway by the time of impact. The defendant did not give evidence, so there is no account from him of his driving. The applicant was so severely injured that he has no memory of it at all.[3]Mr Lynch, a witness, gave the judge what help he could. He explained he was driving a roadsweeper towards Barnet. As he approached and was stopping at the traffic lights in the High Road at its junction with Oakley Road, some 50 metres to the south of the point of impact, 40 metres to the stop line at Totteridge Lane, the Honda motorcycle overtook him on his nearside. The road between Oakley Road and Totteridge Lane was clear for this 50 metres; thus the Honda motorcycle would have been visible over that distance. At 50 miles per hour the motorcycle would have traversed it at something over two seconds.[4]Since Mr Lynch did not really pay attention to the lorry until he heard the motorcycle brake, there was no satisfactory evidence of its speed, but if it had been travelling at between 10 and 15 miles an hour, say 12 and-a-half miles an hour, then Mr Glennie calculates it would travel 5.55 metres a second; that is to say, it would have taken just over one second to cross to the point of impact, and of course longer still for the whole of the lorry to have turned into Totteridge Lane without obstructing the oncoming traffic. Given that arithmetic and given that the motorcycle was in view of the defendant had he looked for about 50 metres, Mr Glennie submits that the learned judge failed to take these relevant facts into account and that had he done so he ought to have concluded that the defendant could have stopped in time to allow the defendant to pass safely in front of him.[5]He criticises the judge’s findings in paragraph 23, namely:
“Thus it was appropriate for Mr Hemingway to proceed to turn right from High Road, Whetstone, into Totteridge Lane in that situation. Obviously he needed to check before commencing that manoeuvre but there was no traffic in the opposite carriageway which would prevent him completing that manoeuvre safely, but until Mr Judd’s motorcycle emerged from beside the road sweeper that appeared to be the position.”
[6]Mr Glennie submits a careful driver must check not only before commencing the manoeuvre that he can complete it safely, but especially at a staggered junction like this with a large slow moving lorry a vehicle like this, he must also take care during the manoeuvre that it remains safe to cross the carriageway.[7]Mr Glennie also criticises the judge’s findings in paragraph 24, when

the judge said:

“There comes a point in the course of making a right hand turn when the driver of a vehicle ceases to have a view, without turning his head, of the road which he is crossing, and has a view only of the road into which he is turning. To fail to keep turning sideways on in that situation is not, in my judgment, negligent as long a judgment has reasonably been formed before commencing the manoeuvre that it can be completed safely because there is no other relevant traffic in the vicinity.”
[8]Mr Glennie submits not only that there was no evidence to justify this finding but also that the duty to take care is a continuing duty not a duty discharged in the moment before the manoeuvre commences. A prudent driver must turn his head to check it is safe to continue.[9]It seems to me these criticisms are arguable and there is a real prospect of success.[10]This case is, however, all about contributory negligence. All that would be necessary for this to be considered by a mediator is a very small clip of papers. The costs of ADR should not be significant. It does seem to me a terrible shame that an attempt is not made to settle the case before the greater costs of the appeal are incurred.[11]So you have your permission.

LORD JUSTICE CARNWATH: I agree.

Order

Application granted.