Bland & Anor v Morris & Anor [2006] EWCA Civ 56

Case No B3/2005/0351

[2006] EWCA Civ 56

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT

QUEEN'S BENCH DIVISION

(MR JUSTICE JACK)

Venue Royal Courts of Justice

Date Wednesday, 18th January 2006

Strand

London, WC2

B E F O R E:

LORD JUSTICE BUXTON

LORD JUSTICE GAGE

LORD JUSTICE LLOYD

Between

SIMON PAUL BLANDRespondent

RATHBONES BAKERIES LTDRespondent

-v-

Between

JEANETTE PRISCILLA MORRISAppellant

MINISTRY OF DEFENCEAppellant

(Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street, London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

MS S RODWAY QC (instructed by Messrs Morgan Cole, 35-37 Friar Street, Reading, Berkshire RG1 1DX) appeared for Appellants

MS M BOWREN QC (instructed by Messrs Hill Dickson, Pearl Assurance House, 2 Derby Square, Liverpool L2 9XL) appeared for Respondents

J U D G M E N T

LORD JUSTICE GAGE:

[1]This is an appeal against a decision of Jack J by which he apportioned blame for a road traffic accident as to two-thirds in respect of the defendants' negligence and one third in respect of the claimants' negligence. The defendants appeal the finding that they were two-thirds to blame. It is contended that the claimants should bear the greater portion of the blame.

[2]The procedural history is as follows. The claimants, Simon Paul Bland and Rathbones Bakeries Limited, admitted liability for death and injury to a number of RAF cadets who were passengers in a coach driven by the first defendant, Jeanette Priscilla Morris, and owned by the second defendant, the Ministry of Defence. This collision closely followed an accident between the coach driven by Mrs Morris and a lorry driven by the Part 20 defendant, whom the defendants joined, seeking a contribution in respect of any liability attaching to them.

[3]The background facts are not substantially in dispute and are as follows. On 21st August 2004, a little after half past nine in the evening, an accident occurred on the A1 just north of the Wittering service station. The claimant's coach, at the time driven by Simon Bland, collided with the rear of a stationary coach owned by the first defendant and driven by Ms Morris. This accident was the second of two collisions involving the coach, both of which occurred in the vicinity of Wittering Service Station on the northbound section of the dual carriageway. At the time it was not quite fully dark and, although the service station was lit, the carriageway was not. The first collision involved a lefthand-drive articulated Volvo lorry driven by Jose Tomas Penarrubia-Serrano, the Part 20 defendant. Mr Penarrubia was driving his articulated lorry out of Wittering service station when he collided with the first defendant's Dennis Javelin 55-seater coach, driven by Ms Morris. The nearside mirror of the coach struck the curtain of the offside of Mr Penarrubia's trailer, close to the front. It caused the mirror of the coach to be pushed back, smashing the glass of the coach door. At the time, the coach was carrying 46 passengers, being 40 RAF cadets and six adults returning to RAF Wittering from a day's orienteering in Wakerley Woods.

[4]For the sake of simplicity, I shall hereafter refer to the parties by the names of the drivers of the vehicles. Following the first collision, which occurred at the exit from the Wittering service station, Mrs Morris asked if any of her passengers had been injured. None had. She activated the coach's hazard lights and slowed down, coming to a halt, as the judge found, approximately 90 metres beyond the point at which the first collision had occurred. Having stopped with the nearside wheels of the coach just off the road, on the verge, Mrs Morris walked back to Mr Penarrubia but, because of his inability to speak English and her inability to speak Spanish, no conversation took place and he returned to the coach. On reaching the coach, her evidence was that she instructed the passengers to alight. The judge found that she had made a remark to the effect that they were sitting ducks. At that time, traffic was light but vehicles were passing regularly. Mr Bland, driving a Mercedes Actros articulated lorry, saw Mr Penarrubia's lorry parked at the end of the exit to the Wittering service station and protruding into the carriageway. He said in evidence that he did not see the coach until he was very close to it. In the result, attempting to swerve past it, his cab shaved the offside corner of the coach but the trailer following behind caught the rear of the coach with what the judge described as "tragic consequences". Some cadets had by the time of this collision got off the coach but there were still some at the rear of the coach in their seats. Three of those cadets in the coach were killed and a number injured, one very seriously. The claimants admitted liability to all injured in the second collision and, as I have said, claimed contribution from Mrs Morris. Mrs Morris took Part 20 proceedings against Mr Penarrubia.

[5]The judge found that the second collision occurred after an interval of at least three to four minutes from the first collision. He also found that the place where the coach stopped was in sight of a sign that there was a lay-by ahead, although the distance to the lay-by on the sign could not be read. In evidence, Mrs Morris said that she knew that there was a lay-by ahead. The judge found that in fact the lay-by was approximately 190 metres from where the coach stopped. At the place where the coach stopped with its nearside wheels just on the verge, there was, as the judge found, room for the coach to be driven on to the verge so as to ensure that it was completely off the carriageway.

[6]Both Mrs Morris and Mr Bland were prosecuted for causing death by dangerous driving. In November 2001, Mrs Morris was convicted on three counts of causing death by dangerous driving and sentenced to a term of imprisonment of eight months. Her appeal against conviction was dismissed. Mr Bland was acquitted of causing death by dangerous driving but convicted of driving without due care and attention. He was fined.

[7]The judge found that, in respect of the first collision, Mr Penarrubia was 60 per cent to blame and Mrs Morris 40 per cent to blame. In respect of the second collision, as I have already said, the judge apportioned blame between Mrs Morris and Mr Bland: one third to Mr Bland and two thirds to Mrs Morris. He found Mr Penarrubia liable to contribute 20 per cent towards Mrs Morris' share of the blame for the second collision. There is no appeal in respect of the judge's findings relating to Mr Penarrubia's contribution to damages for personal injuries in respect of the second collision.

[8]At trial, the judge heard evidence from Mrs Morris and Mr Bland and from a number of eye-witnesses. He also heard evidence from police officers who attended the scene of the accident and from a number of experts. As to the experts, the judge found that none were particularly helpful on the issues arising in respect of the second accident. Of the eyewitnesses, six were drivers of vehicles which had passed the scene of the first accident in the interval between it happening and the second accident occurring. One, David Coombe, driving a 10-tonne flatbed recovery vehicle loaded with a van, said he passed Mr Penarrubia's lorry and suddenly realised that the coach in front of it was stationary. He thought it was an accident waiting to happen. Another saw the coach at a late stage. He pulled out from the nearside carriageway and just missed it. There was little dispute in respect of the driving of Mrs Morris and Mr Bland, save that Mr Bland said that, as he approached the exit to the Wittering service station, he saw a second vehicle protruding into the nearside lane of the carriageway. However, the judge found that he was mistaken and that there was no lorry at the exit other than Mr Penarrubia's vehicle.

[9]In his judgment, the judge first dealt with the respective responsibility of Mr Penarrubia and Mrs Morris for the first incident. Before going on to deal with the responsibility of Mrs Morris and Mr Bland for the second accident, the judge prefaced his findings by a discussion on the effect of the criminal convictions of each and references to provisions of the Road Traffic Act 1998 and the Highway Code. So far as the latter are concerned, he reminded himself of the statutory provisions dealing with the driver's duty not to allow a vehicle to remain at rest on a road in such a position as to involve a danger to other users; and the provision of the Code, which required the removal of a broken-down vehicle from the road if possible; and, in the event of stopping on the hard-shoulder of a motorway, for the driver and passengers to leave the vehicle and to move to a place of safety. As to the effect of convictions, the judge held in accordance with the dicta of Lord Denning MR in Stupple v Royal Insurance Company

[1971] 1 QB 50

at page 72 that a relevant conviction did not merely shift the burden of proof but was "a weighty piece of evidence in itself". Lord Denning, at page 74, added that the verdict of the jury was entitled to great weight but was not conclusive and could be rebutted. There is no criticism of this part of the judgment.

[10]In reaching his conclusions, the judge made the following comments and findings in respect of the responsibility of Mrs Morris and Mr Bland for the accident. First, Mrs Morris. The judge's findings in respect of her responsibility are set out in paragraphs 38 to 41 of the judgment. In paragraph 38, he said. "I find that there were three reasons why Mrs Morris stopped where she did. The first was she had had an accident and she thought that she should stop. The second was that she thought she should exchange particulars with the driver of the vehicle with which she had collided. Third, she wanted to find him before he drove on and to remonstrate with him. She was angry and I think that not letting him 'get away with it' was a powerful factor in her mind. I think that that was why she hurried back towards the service station. I find that having hurried down, she walked back with Mr Penarrubia. If the cause of her hurry had been her concern that she had left the coach and its passengers in a dangerous position on the carriageway, she would either not have done it or would have evacuated the coach. I find that she gave no real thought to whether she should stop where she did or whether it was a safe place. If she had paused to think about that, she would have realised that it was not a safe place and that she should not have stopped there. I bear in mind that following the first collision her vehicle had not given any sign of being damaged in a way which affected its drivability. Mrs Morris did not inspect it for damage apart from that to the mirror and door at any time: she did not look to see if the near side of the coach had suffered any other damage as she walked past it; she did not look at the tyres. Although she said that she thought it might be dangerous to drive on, I do not think that it was in her mind at the time."

[11]He went on to discuss three options which Mrs Morris had following the first collision. They were either to drive onto the lay-by, the approximate position of which he found she knew, or to drive the coach onto the verge, thereby completely removing it from the carriageway, or, immediately on stopping, to evacuate the passengers from the coach. He said that the best of these options was to drive on, something to which Mrs Morris simply gave no thought but ought to have done. He expressed his conclusions as to negligence as follows:

"40. I conclude that Mrs Morris should not have stopped a drivable vehicle where she did but should have gone on to a place where it was safe to stop, namely the lay-by. Having stopped where she did she should have either driven onto the verge and evacuated the passengers or should have at least evacuated the passengers - the latter would have made the passengers safe but the coach would have remained a dangerous obstruction. Having not done either of those, when she returned with Mr Penarrubia she should have driven on to the lay-by. I find that she was negligent in these respects."

[12]As to Mr Bland's responsibility, he said at paragraph 42 of the judgment:

"42. The case against Mr Bland is much simpler. Mr Bland accepts that he was negligent, but it necessary to look at the precise manner of his negligence to see the measure of his blame. It is that he spent too much time looking at the lorry or lorries in the slip road and then in looking in his mirrors. If he had looked ahead at any time after passing a point 130 metres from the coach he should have seen it. He would have had time to slow and stop, or slow and move into the fast lane when safe. For this I refer to the joint statement of Mr Sorton and Dr Searle. I find from the tachograph evidence that Mr Bland did not touch the brake as he approached the slip road, but remained on cruise control. He did not see the coach until it was too late to brake: he could only swerve. At 50 mph 130 metres would take about 5.8 seconds."

[13]The judge went on to refer to the fact that a number of cases were cited to him by counsel. In his judgment he made reference only to one, namely Rouse v Squires

[1973] 1 QB 889

. Having referred to that case the judge set out his conclusions on apportionment at para 45 of the judgment in the following terms:

"I am here considering what contribution Mrs Morris and Mr Bland should make to the damages that are due to the injured cadets and the estates of those who died. In my judgment the relationship of Mrs Morris to the cadets, namely that they were passengers in her charge, is an important factor in deciding what proportion she should bear. It is important that having stopped where she should not have done she had a second opportunity to avoid injury to them by evacuating them from the coach. That is a factor that is missing in the usual cases where the competing parties are a driver who stopped on the highway by accident or design and a driver who ran into him."

[14]Ms Rodway, on behalf of Mrs Morris, submits that the judge's apportionment of blame was too favourable to Mr Bland. She argues that the apportionment ought at the least to have been the reverse of what the judge found; in other words, he should have found Mr Bland two-thirds to blame and Mrs Morris one-third to blame. She makes three broad submissions in support of this appeal. First, she submits that established cases show that the conventional or normal approach of the court to cases where driver A runs into a visible and avoidable obstruction on the highway created by driver B is to hold driver A more to blame than driver B. She relies on a number of decisions of this court to demonstrate this trend. Before this court, she referred to Rouse v Squires, Parsons v Western National Ltd [1999] and Billington v Magquire. She submits that there was nothing in the facts of this case which permitted the judge to depart from that normal trend. Secondly, she submits that the judge failed properly to assess and give the proper weight to the negligence of Mr Bland. Thirdly, she submits that the judge's approach to what he described as Mrs Morris' failure to evacuate the passengers from the coach before the accident was wrong. The principal submission on this issue is that Mrs Morris, as driver of the coach, owed no greater duty of care nor carried any greater responsibility for the safety of the coach's passengers than Mr Bland or indeed any other driver. The judge's conclusions, she submits, in paragraph 45 were wrong. Alternatively, if the judge was correct in holding that it was a factor to be taken into account in assessing the parties in respect of blame, it was not sufficient to cause a finding of two-thirds liability on Mrs Morris.

[15]I deal first with Ms Rodway's submission that, in cases where a following driver runs into a visible and stationary obstruction, there is a convention that the following driver it more to blame. I accept the judge's formulation that normally it will follow that the following driver will bear the greater blame but I do not accept that in any sense this amounts to a convention. Each case will turn, as in my judgment this one does, on its own individual facts. Ms Bowron QC, representing Mr Bland, in her skeleton argument rightly reminds the court of what Lord Greene MR said in Morris v Luton Corporation

[1946] 1 KB 11

at page 115 to 116:

"There is sometimes a temptation for judges in dealing with these traffic cases to decide questions of fact in language which appears to lay down some rule which users of the road must observe. That is a habit into which one perhaps sometimes slips unconsciously -- I may have done it myself for all I know -- but it is much to be depreciated, because these are questions of fact dependent on the circumstances of each case. I cannot regard that observation of Scrutton LJ's as in any sense affecting other cases where the circumstances are different. In the hope that this suggested principle may rest peacefully in the grave in future and not be resurrected with the idea that there is still some spark of life in it, I should like to say that I am in agreement with the observation of Lord Wright, sitting in this court in Tidy v Battman [1934] 1 KB 319. He says there, referring to Baker v Longhurst & Sons Ltd [1933] 2 KB 461, and one other case, that they show 'that no one case is exactly like another, and no principle of law can in my opinion be extracted from those cases. It is unfortunate that questions which are questions of fact alone should be confused by importing into them as principles of law a course of reasoning which has no doubt properly been applied in deciding other cases on other sets of facts.' That was the observation of one member of this court. I now adopt it myself and, if my brethren take the same view on that, in future there will be the unanimous opinion of three members of this court that that is the law, and I hope that that may conduce to the certainty of the law in these matters."

Suffice it to say that his brother judges endorsed that approach. I add that where a judge at first instance has made findings of fact which lead to a conclusion that each party is negligent, this court will rarely interfere with his decision on apportionment.

[16]Next, Mrs Rodway submits that the judge failed properly to assess and give due weight to Mr Bland's negligence. She relies on the obvious findings referred to by the judge in paragraph 41, to which I have already referred, but she submits that this does not sufficiently deal with the causative potency of his negligence. She submits that he was driving a very heavy lorry at a speed in excess of the speed limit for that vehicle on that road. She reminds the court that the judge found that Mr Bland did not touch his brakes or slow down as he came towards the service station. This added to his failure to see the coach at a distance at which it was visible and which, at the speed he was travelling, would have enabled him to stop. It must mean that the judge's assessment of his blame at one-third was plainly wrong.

[17]For my part, I see nothing in the judgment to show that the judge did not properly assess the totality of Mr Bland's negligence. In addition to what he said in the paragraph to which I have just referred, he described Mr Bland's driving, in paragraph 16 of his judgment. I shall not cite that paragraph. It describes in some detail what Mr Bland did and did not do and ends with the two following sentences:

"He agreed that he had had plenty of time to see the coach and react to it. He agreed that if he had been paying attention he could have seen the coach from 100 metres and that he could have stopped."

[18]In my view, the real question is the weight to be attached to Mr Bland's fault. That was a matter for the judge to assess on the totality of all the evidence.

[19]Ms Rodway's final submission relates to Mrs Morris's actions once the coach had stopped. I have already referred to the three options which the judge found were available to Mrs Morris when she stopped, set out in paragraph 40 of the judgment. The judge continued, at paragraph 41:

"I am satisfied from the evidence that there was an interval of at least three or four minutes between the two collisions. I am further satisfied that, after allowing a short time for the door to be opened, there was time for an organised evacuation of the passengers from the vehicle. It is relevant that these were cadets under a measure of discipline, and not a crowd of school children on a trip. I consider that I am entitled to use my own general experience and common sense to reach that conclusion in the absence of evidence as to timed evacuations. That was Mr. Harman's view."

Mr Harman was a witness at the trial and the man who had some responsibility for the cadets.

[20]Mrs Rodway makes a number of criticisms of this finding by the judge. She challenges the findings, submitting first that there were other adults on the coach who had a responsibility for the cadets. They also had a duty to react to the situation. Secondly, a witness, Mrs Briden, told the cadets to leave the coach but only six did. There was evidence that someone had countermanded the order, something which Ms Rodway submits could have happened if she had given the order to evacuate. Thirdly, when she stopped, she had a number of matters to deal with, not least her statutory duty to exchange particulars with Mr Penarrubia. Fourthly, the judge was in any event not entitled to conclude that, in the short time available to evacuate the cadets, the operation of evacuation could have been completed before the second collision.

[21]In my judgment, the findings which the judge made in paragraph 41 are findings which he was entitled to make. Mrs Morris, in cross-examination, at first agreed that if the cadets had moved quickly, all could have got off the coach before the accident. A little later in cross-examination, she changed this, saying that the majority of them could have been off the coach. She accepted that the cadets were neither unruly nor disruptive. Mr Harman, in evidence, agreed that Mrs Morris had said to the passengers, before she went back to see Mr Penarrubia, "stay put". He agreed, admittedly to leading questions put to him, that it would have been possible for everyone to get off the coach if Mrs Morris had instructed them to do so at first opportunity. Although Mrs Briden's evidence was that she told the cadets to get off the coach before she followed Mrs Morris down to where Mr Penarrubia was, she said only a few had done so before she got back to the coach. At that stage, she said Mrs Morris told them to get off quickly. Her evidence was that she did not believe that there was sufficient time between the two accidents for all the cadets to get off the coach.

[22]In my opinion, the judge in his findings must be taken to have accepted Mr Harman's evidence in preference to that of Mrs Briden. He was entitled to do so. I am further of the opinion that he rightly held that it did not need an expert to explain how quickly or slowly cadets could be evacuated from the coach. That was, as the judge said, a matter of common sense and, as he put it, within his own general experience. For these reasons, I reject the criticism of the judge's findings in paragraph 41. I also reject Ms Rodway's submission that the interval of three to four minutes between the two accidents was too short to allow Mrs Morris to take any effective action to prevent the second accident. I have already dealt with the judge's findings on the issue of evacuation but, quite apart from this, in my opinion the judge was quite entitled to find that Mrs Morris had time to view the damage to the coach and the space available to get the coach off the road, before getting back in and driving it altogether off the carriageway. This finding must also be seen in the light of the fact that the lay-by was only a short distance down the road, something of which, as the judge found, Mrs Morris was aware. He found, as in my view he was entitled to, that the reason she adopted none of these options was because she was angry and wanted to go back to see the driver of the vehicle involved in the first collision.

[23]If seems to me that the real criticism of Mrs Morris' conduct once the coach had stopped was, as the judge said, she simply gave no thought to the question of dealing with the safety of her passengers. She departed quickly back to find Mr Penarrubia. If she, as the driver, had decided that she was not going to move the coach and ordered the passengers to get off, I have no doubt the judge was entitled to find that that exercise could have been completed. Unfortunately, she did nothing to avoid the danger which she had created.

[24]Lastly, in respect of this submission, Ms Rodway submits that even if her conduct after she had stopped the coach was negligent, the judge was not entitled to hold that she bears a greater responsibility for the safety of the cadets than Mr Bland. Alternatively, if she does bear a greater responsibility, it was not sufficient to make the apportionment of her blame up to two-thirds. As to the first of these submissions, I reject Ms Rodway's submission that Mrs Morris owed no greater duty to the cadets than Mr Bland. In my judgment, as the driver of the coach, she had a direct responsibility for the 40 cadets and other passengers, which Mr Bland did not. The judge was, in my opinion, quite entitled to take this into account as a factor which had distinguished this case from those cited to him. This was an important factor and in my view makes it quite different from the normal situation where a driver drives into the back of another vehicle.

[25]One final point arises. In answer to questions from this court, Ms Rodway submitted that Mrs Morris' convictions of causing death by dangerous driving are only relevant to a finding of negligence against her and not to apportionment. She submits that the judge was not bound by the jury's verdict. It seems to me that the verdict in the criminal trial demonstrates that the jury found Mrs Morris was more blameworthy than Mr Bland. Obviously, the judge was not bound by the jury's views but he was quite entitled, as he did, to have regard to them when reaching his own conclusions. Of this he said, at paragraph 47:

"I said that I would return to the matter of the conviction of Mrs Morris and section 11 of the Civil Evidence Act 1968. I have reached the division of responsibility that I have on the basis of the witness evidence. Mrs Morris's conviction adds its weight to the conclusion that I have reached."

[26]In my judgment, the judge's findings of fact cannot be impugned. In this case, he concluded on the facts found by him that Ms Morris and Mr Bland were guilty of negligence which caused death and injuries to the passengers in the coach. He had to balance the relative blame of each in order to make an apportionment. Weighing Ms Morris's fault against the fault of Mr Bland, for my part I might, at first instance, have been persuaded to find that both sides were equally to blame but I am quite unpersuaded that the judge's apportionment was wrong.

[27]I would dismiss this appeal.

LORD JUSTICE LLOYD: I agree.

LORD JUSTICE BUXTON:

[29]I also agree. I merely add this. We were properly reminded in Ms Bowron's written skeleton argument of the unanimous view of this court in Morris v Luton Corporation, as long ago as 1945. It is important that those who seek to challenge what are essentially findings of fact and judgement by a judge who has heard the case and listened to the witnesses should bear that guidance in mind before they think that the case is appropriate for the attention of this court.

[30]Further, and in any event in this case, the judge was absolutely right, in his paragraph 45 that my Lord has set out, to point out that this was not simply an ordinary collision case, a straightforward argument between one driver and another. The original claimants were the injured cadets and their estates and it was the much greater responsibility of Mrs Morris towards those particular individuals, as opposed to Mr Bland's general responsibility for careful driving, that guided the judge to the conclusion to which he came.

[31]There is no basis, as my Lord has amply set out, for challenging that conclusion. I would also dismiss this appeal.

Order

Appeal dismissed. The parties are to use their best endeavours to agree the costs, with any item of disagreement to be submitted on paper to Lord Justice Buxton for summary assessment.