Davies v Cullip [2008] EWCA Civ 1620

Case No B3/2008/1294[2008] EWCA Civ 1620
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SALISBURY COUNTY COURT
(MR RECORDER NORMAN)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 10 th December 2008
Before
LORD JUSTICE WARDLORD JUSTICE RICHARDSLORD JUSTICE AIKENS
Between
DAVIESRespondent/ClaimantCULLIPAppellant/
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr J Todd (instructed by DWF LLP) appeared for Appellant.Ms A Barnes (instructed by Barrett Goff & Tomlinson) appeared for Respondent.
Judgment
[1]There is a petrol station on the A342 near the village of Faverstown. As one drives towards the village, there are long straight stretches of the road where it is possible to overtake if one wants to, but as one approaches that filling station the lanes of traffic are separated by diagonal lines or chevrons drawn between two broken white lines. According to Rule 109 of the Highway Code one should not enter that area unless it is necessary and one can see that it is safe to do so. Although these two broken white lines continue up to the filling station and beyond it, the area between them is blank for a distance of some 20 metres opposite the entrance to the petrol pumps and the forecourt. At that particular point the carriageway is three metres wide as one travels from Andover. The distance between the broken white lines is 1.2 metres and the other carriageway is 2.9 metres wide. It is apparently quite a busy petrol station and cars are often queuing to get to the pumps. There are cars parked on the forecourt of the petrol station because it is flanked by two car sales businesses, one of which is owned by Mr Daren Cullip, the appellant. That sets the scene of the road traffic accident which was the subject of this appeal and in respect of which Mr Recorder Norman, sitting in the Salisbury County Court on 13 May 2008, found Mr Cullip wholly to blame for the injuries that were suffered by the respondent, Mr Owen Davies.[2]The accident happened in this way. At about 11.00 on a fine Saturday morning on 9 December 2006 a Mrs Lindsay Kemble was driving her husband from Andover in the direction of Faverstown in their Ford Maverick 4 x 4 motor vehicle. She needed to fill up with petrol and so she slowed down and indicated her intention to turn left into the filling station. The respondent, Mr Davies, was following on his Triumph motorcycle and so overtook the turning Ford Maverick. At the same time, the appellant was emerging in his Citroën motor car from the forecourt in front of Mrs Kemble. A collision took place, and it is agreed that it took place in the area between the two broken white lines marking the division of that carriageway. The impact, it seems to be accepted, occurred because the front of the Citroën struck the motorbike almost square on or as close to that as can be. It struck the leg of the respondent and he suffered a broken leg, as a result of which he brought this claim for damages for personal injury.[3]The Recorder was dealing with the question of liability only. He made a number of clear findings of fact. Firstly, he found, on the issue of the speed of the Ford Maverick immediately before the collision, that although witnesses spoke of it slowing down to 10 to 15 mph -- some as slow as 10mph -- and Mrs Kemble herself saying 5 to 10 mph, Mr Cullip saying stationary, he concluded from that range of evidence that before the collision the Ford Maverick was going extremely slowly. The second issue which he addressed was the position in the road of that Ford Maverick car and he accepted the evidence in that regard that the Ford had commenced its turn into the road. The third issue is the subject of the debate in this court and I will return to it.[4]The fourth issue the Recorder dealt with was Mr Cullip’s perception and knowledge of the particular circumstances and potential dangers of the junction in question, and as to that there was no great controversy because the appellant knew perfectly well that there was a danger of accidents at this particular stretch of the highway. He knew that the road was renowned for people overtaking at about that point; he knew that there had been previous accidents there on other occasions.[5]The fifth issue which the Recorder addressed was the way in which Mr Cullip emerged from the petrol station. He gave evidence that he crept forward, taking particular care to ensure he was not creating a danger. Indeed, as I read his witness statement and, I believe, his evidence, he was asserting that he had come to a halt before the collision actually occurred. Mrs Kemble described it differently, and the finding was that Mr Cullip, having decided to emerge, did not do so in the “careful, ginger manner” which he asserted, but “he came out in a continuous movement at a normal speed for somebody coming out on to the main road at such a point”.[6]The final question for the judge was whether he had come to a halt before the collision occurred, and on that the Recorder found that Mr Cullip’s vehicle was still moving when the accident occurred. He added:
“It seems to me to be inherently unlikely in the circumstances that if he had stopped, a collision would have occurred at all”
And so he made that as a further finding of fact.[7]The third issue, as the Recorder described it, was the position that Mr Owen Davies took up in the road immediately before the collision. In order to understand that, one must appreciate exactly what Mr Davies was saying about it. The summary is taken from paragraph 24 of his witness statement. He was dealing with the journey, and he said:
“I wish to repeat I was in no rush and was enjoying the ride. I am a careful and responsible rider particularly carrying Jane [his partner] as a pillion. I had plenty of opportunity prior to the accident to overtake the van if I wished. There was no need to do so. We were travelling at a steady speed and I was at a safe distance and in a safe position behind the van. When the van entered the garage forecourt, I remained within my own side of the carriageway and only deviated my course into the hatched area to avoid the car emerging from the garage. I was certain there was no oncoming traffic and this was my only way of attempting to avoid the collision. I certainly did not attempt to overtake the van on the hatch-markings, nor did I accelerate quickly as the van moved out of the way, particularly as Faverstown is only a few hundred yards further on. There was nothing that I could have done to avoid the collision.”
[8]The judge was, it has to be said, “much impressed with the evidence of Mr Davies.” He spoke extremely well of him. He described the enthusiasm Mr Davies has for riding motorcycles, having started on a friendly farmer’s land when he was a stripling of ten and getting on to the roads at the first lawful opportunity he could. He is now a man in his forties; he is forty-five. He has been driving for very many years. He regards himself as a careful driver and, as the Recorder put it, “he enjoys a cruiser style of motorcycle as he is not a speed freak”. He satisfied the Recorder that he was a careful driver. He did so as much for his own protection as for respect for the Highway Code. So it was a highly favourable assessment of Mr Davies.[9]The question he posed to himself was the position Mr Davies took up in the road immediately before the collision. And on that he recited the evidence given by Mr Davies that he pulled across slightly in the carriageway to overtake. The position, he said, was to move slightly to the right but, in any event, taking up a position where he could see Mrs Kemble’s offside mirror. He denied emphatically he had moved into the hatched markings in the middle of the road and that denial was apparently maintained despite the -- I am sure skilful -- cross-examination by Mr Todd for the defendant, who was anxious to suggest that at all times he was intent on overtaking and was overtaking within the hatched area dividing the two lanes on that road.[10]The Recorder observed that the measurements of the vehicles and of the road are consistent with the evidence given by Mr Davies. The width of the Ford was some 1.8 metres and so, on the mathematics of the Recorder, if two thirds of it remained on the road, 1.2 metres of the road was taken up. The motorcycle was about 0.8 of a metre wide at its widest point, and so there was room for the overtaking to have occurred as Mr Davies described it.[11]The challenge to that was the mathematical improbability advanced by Mr Todd and I will speak of that in a moment. The judge’s finding -- and it is an important one it seems to me -- was given in paragraph 12:
“It seems to me therefore that, given that I generally accept the evidence of Mr Davies, that there is nothing in the evidence that should lead me to reject that evidence and therefore find that he did stay, albeit just, on his side of the hatchings”
[12]This appeal is eloquently advanced by Mr Todd to suggest that the Recorder erred, because there is no legitimate explanation for the finding that the collision occurred within the two lines of the carriageway, which therefore indicated that at all material times in the course of the overtaking, Mr Davies must have ventured into the hatched area; that he did so in breach of Rule 109 of the Highway Code; that he was therefore negligent and that that negligence contributed to the collision.[13]The way Mr Todd puts that case is well set out in his skeleton argument where he develops the argument, from a base of taking the motorcyclist’s speed at 18 to 20 miles per hour as it passed the Ford Maverick, that there was some 10 to 15 feet between the two vehicles at that appropriate moment. And so, doing calculations which are in part challenged by Ms Barnes for the respondent, whose mathematical precision is such that she takes the conversion of feet to metres to nine decimal places, which seems to me -- whilst accurate -- a little extravagant, but nonetheless Mr Todd calculates that it would be impossible at that speed and with those distances to have more than half a second or even a second in which to react; the reaction time is one to two seconds; therefore it was impossible for Mr Davies to have reacted; his evidence that he swerved to avoid the collision is a figment of his imagination; it is the kind of thing that one assumes one has done even if one has not in fact done it.[14]I have difficulty with that argument. I share the Recorder’s view that with tight tolerances of this sort with estimates of speed that, on the evidence in any event vary -- for example if the overtaking was of a vehicle travelling very slowly, be it 5 miles an hour, 10 miles an hour or 15 miles an hour -- it is a matter of huge uncertainty whether Mr Davies had got up to 18 to 20 miles an hour at the point of impact. To have the fraction of a second of time which Mr Todd’s calculations postulate as the time available accurately to judge whether the distance between them was 10 or 15 feet or more or less all seems to me to be impossibly vague as a foundation for precise mathematics. The Recorder rejected the mathematics on that basis and, in my judgment, he was right to do so. He was, in my judgment, fully entitled to accept the evidence of Mr Davies, including the evidence that, in the split second that was available to him, he managed -- bearing in mind this is a motor car -- to fling himself to his right and so steer his vehicle those few feet it would have taken him from his own carriageway into the area between the broken white lines. And so I do not accept that the base figures are certain enough to justify the minute calculation and the minute tolerances for which Mr Todd has advanced his case.[15]Moreover I cannot see that it has any causative impact whether Mr Davies was travelling some inches on the correct side of the white line or some inches to the offside of the white line. We are talking, it seems to me, of a matter of a foot or so; we do not know precisely where this impact took place. But if it is conceded, as I think it is, that if Mr Davies had stayed within his carriageway he would not have been guilty of any contributory negligence, I do not see that his veering even a couple of feet to the offside of the nearest white line would have had any causative effect at all. The stark fact is, as the Recorder found, that Mr Cullip was negligent in choosing to enter the road and turn right when he could not be sure that the gap was safe. He could not be sure that the Ford was not obstructing his view of some other vehicle, like a motorcycle, that was approaching. He came straight out without stopping and drove into the left leg of the claimant and broke it.[16]It seems to me that, on the Recorder’s findings of fact, the conclusion that Mr Cullip was wholly to blame for this collision is the only proper conclusion that could have been reached and I would dismiss this appeal.[17]I agree.[18]I also agree.

Order

Appeal dismissed