Heaton v Herzog [2008] EWCA Civ 1636

Case No B3/2008/1168[2008] EWCA Civ 1636
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CAMBRIDGE COUNTY COURT
(HIS HONOUR JUDGE YELTON)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday, 13 th November 2008
Before
LORD JUSTICE WARD,LORD JUSTICE STANLEY BURNTONSIR WILLIAM ALDOUS
Between
HEATONAppellantHERZOGRespondent
(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 R Menzies (instructed by Messrs DWF Llp) appeared for Appellant.Mr G Foxwell (instructed by Messrs Rudlings Wakelam) appeared for Respondent.
Judgment

Sir William Aldous:

[1]On 7 July 2003 Mr Paul Coates was riding his black Triumph 900cc motor bicycle with its lights on down Rattlers Road, Brandon, when he collided with an Audi driven by Mrs Heaton. Mr Coates was killed. On 3 July 2008 Mrs Heaton started proceedings against the personal representatives of Mr Coates for damages. She alleged that the accident was caused by Mr Coates’ negligence in that he had failed to keep any proper lookout: he was driving too fast; failed to observe or heed the presence of her vehicle; failed to steer or control the motor cycle or apply his brakes adequately, or at all, so as to avoid colliding with the claimant’s vehicle.[2]The personal representatives of Mr Coates denied that Mr Coates was negligent and alleged that it was Mrs Heaton’s fault: she was negligent and was guilty of contributory negligence.[3]The action came on for hearing before HHJ Yelton in the Cambridge County Court. He held that Mrs Heaton was not to blame: the fault was that of Mr Coates, and he ordered that damages should be assessed in favour of Mrs Heaton. He refused leave to appeal but leave was given by this court.[4]The accident occurred around 7.15pm. The conditions were good in that it was sunny and the road was dry. The motor cycle was travelling down Rattlers Road from the direction of the London Road. Rattlers Road is a single carriage main road. The Audi turned right out of Stuart Close into Rattlers Road. The collision occurred when the Audi had half turned into Rattlers Road. The judge in his judgment realised that there was a high duty of care on a driver pulling out from a side street such as Stuart Close into a main road. His conclusion that the motor cyclist was wholly to blame was, in broad terms, based upon his conclusion that Mrs Heaton did everything she could, and could not see the motor cycle until it was too late. To arrive at that conclusion it was necessary that he should consider in detail how the accident happened: in particular, first, the actions of Mrs Heaton before turning and whilst turning into Rattlers Road; second, the speed of the motor cycle; third, the view down Rattlers Road available to Mrs Heaton when she stopped at the entrance to Rattlers Road and turned into it. I come to consider those matters. The actions of Mrs Heaton[5]The judge held that Mrs Heaton, who had been driving for thirty years without an accident or conviction, stopped at the entrance to Rattlers Road and applied her hand brake. She looked in both directions and then pulled out. She was driving very slowly when the accident happened. That finding was based upon the evidence. In cross-examination she said that she pulled up, put the car into neutral, looked left and right, saw nothing, depressed the clutch, put the car into gear, released the hand brake and pulled away from Stuart Close in the normal way. She was cross-examined as to whether she looked right again before pulling away. She said that she looked in the direction the car was turning and thus looking down the road. She did not see the motor cycle until it hit her car. She described what she saw as a blue flash. The speed of the motor cycle[6]The judge felt unable to place any great reliance upon what anybody was able to say about the exact speed in miles per hour, and the suggestion by witnesses of double the speed limit seemed to him to have come from the police who investigated the accident. However, there was ample evidence to support the judge’s finding that the deceased was travelling way above the speed limit. It was considerably above 30 miles per hour (that being the speed limit on Rattlers Road), which was safe in a narrow road with parked vehicles. The police made calculations using the skid marks at the place where Mr Coates’ body was found. They estimated that, depending upon certain parameters, the speed of the motor cycle was upon impact between 24 and 31 miles per hour. The judge held that the higher speed was likely. Based upon that, the police calculated the speed before braking as 47 miles per hour. The judge did not find it necessary to come to a conclusion as to the particular speed, but concluded that the motor cycle was travelling far too fast. There was, in my view, ample evidence to support that finding. The line of sight down Rattlers Road[7]Rattlers Road is a straight and unimpeded road. Mrs Heaton could have seen a motor cycle for at least 80 metres, probably considerably more if there had been no obstruction. However, there was evidence that two cars were parked on the left hand side of the road as seen from the travel of the motor cycle. The judge accepted the evidence of two ladies who had parked their cars partly on the pavement of Rattlers Road and partly in road, about 50–55 metres from Stuart Close. The measurements come to a distance of 54.5 metres. I think it was implicit in the judge’s findings that the cars impeded Mrs Heaton’s view of the motor cycle as it came down Rattlers Road, and therefore it could only have become visible when the motor cycle pulled out to pass the parked cars, which would be a few metres before the distance where the cars were parked of 54.5 metres. The appeal[8]The appellants did not dispute that the motor cycle was travelling in excess of the speed limit and in fact far too fast. However, they do criticise the judge in not arriving at a distance over which the motor cycle could and should have been visible to Mrs Heaton. They submitted that he should have held that the distance could not have been less than 60 metres and was likely to have been closer to 80 metres. That, it was said, was apparent because the plan shows that the parked cars were 54.5 metres from the point of impact, but it also showed that Mrs Heaton had pulled into the road at the mouth of Stuart Close a further 3.5 to 5 metres from the nearest parked car. Thus she was 58–59.5 metres from the parked car. It was submitted that, depending upon the position of the motor bicycle on the road, the motor bicycle would have been visible to Mrs Heaton when it pulled out to pass the parked cars, which would be in excess of 60 metres, probably 70 or 80 metres. It was also submitted that the judge should have found that the motor cycle could and should have been visible from not less than that distance.[9]The evidence in my view is not sufficient to establish that the motor cycle was visible to Mrs Heaton until it passed or pulled out to pass the parked cars, and therefore it would not have been visible until about 60 metres away from her when she pulled up at Stuart Close. There is no evidence as to where on the road the motor cycle was, and Mrs Heaton’s evidence does not support anything further. In any case, a different conclusion would, in my view, appear to be in conflict with the general tenor of the judge’s findings.[10]The appellants do not accept the police calculations as to speed derived from the skid marks, but submitted that even if the top speed for the motor cycle is accepted, namely 47 miles per hour (21.16 metres per second), the motor cycle would take 2.8 seconds to travel the 60 metres. Thus the motor cycle must have been visible to Mrs Heaton for about 2.8 seconds. The police calculation was 2.5 seconds, using a line of sight of 54.5 metres. The difference of 0.3 of a second appears to me to be immaterial, having regard to the margin of error that must arise. But in my view it is clear that the motor cycle must have been capable of being seen by Mrs Heaton for somewhere between two and three seconds.[11]The main challenge to the judge’s conclusion was that he failed to take into account at all or sufficiently Mrs Heaton’s driving. She did not see the motor cycle until just before the impact, although it was submitted that it had been visible for at least three seconds. The reason, counsel submitted, was that she failed to look again to her right before moving out into Rattlers Road. She saw nothing when she did look to her right, and decided to drive out of Stuart Close. She then engaged first gear, let off the handbrake and drove slowly out in the normal way that she would do so. She did not look to her right again before driving off, nor during the travel of the car into Rattlers Road. Counsel submitted that a reasonably competent driver who is turning from a side road into a major road would have looked left and right just before moving off and during the manoeuvre. He reminded us of the statement of Russell LJ in Dolby v Milner [1996] 2 CLY 4430, CA, where Russell LJ said:
“It is to be observed that at no stage in the judgment does the judge refer to and emphasise, as in my judgment he should have done, the fact that the plaintiff here was emerging from a minor road onto a major road, and was consequently under a continuing obligation to give way to traffic on the major road.”
If she had done that which Russell LJ said that she should have done, she would have continued to look right before moving off and during the manoeuvre. She would then have seen the motor cycle and could have taken action to stop her car before an accident became unavoidable.[12]On behalf of Mrs Heaton, Mr Foxwell drew our attention to the cross-examination of Mrs Heaton and suggested that in fact she had looked sufficiently to the right. He also, in effect, relied upon the findings of fact of the judge, and said it was within the judge’s measure of judgment to arrive at the conclusion that he did. In my view, a driver who is turning right from a side road into a major road is under a duty to take extreme care before doing so and when doing so. That was more so in this case, where Mrs Heaton was aware that vehicles travel too fast down the road and her line of sight was restricted at a point of about 54.5 metres from where she pulled up. In my view, if she had kept a proper look-out she would have seen the motor bicycle approaching her, and she had an ample opportunity of about, say, two seconds to take action. If she had seen him at the same time he saw her, she could have taken action and braked. That at least probably could have meant that the car would not have straddled the road and the motor bicycle would have had an opportunity to pass round the front.[13]I cannot accept Mr Foxwell’s view of the evidence given by Mrs Heaton. I think it is clear from her evidence and the statement which she made to the police that she looked left, then right, decided to move off into Rattlers Road, engaged gear and moved out, and during that movement she looked through the front of the car.[14]Mr Foxwell relied particularly upon the passage in the judge’s judgment at paragraph 13. In my view the judge failed to take into account sufficiently the way that Mrs Heaton had driven. He did not give significance to the fact that she had an opportunity to see the motor bicycle before the accident arose. No doubt it was reasonable for her to look right and decide to move from the side road into the major road, but she had a continuing duty to look to her right, particularly as her line of sight was restricted. In my view Mrs Heaton was partly to blame for the accident. If she had driven in the way that I suggested that she should have done, keeping observation to her right, she would have had an opportunity to brake -- that would, in all probability, have enabled the accident to be avoided. I therefore believe that she contributed to the accident.[15]Having come to that conclusion, it was potentially a case where we would send it back to the judge to decide what blame should be apportioned to her actions. Both counsel agree that this should be decided by this court. We have the plans, we have the evidence and we are able to come to a conclusion. In my view it is difficult to decide whether the reaction of Mrs Heaton, if she had seen the motor bicycle as she should have done, would have been such as to clearly avoid the accident. It is very difficult to decide as to what stage she would have actually seen it, what speed she would be going and what her reaction time would be.[16]I have come to the conclusion that she should not be held to be liable for 50% and that 25% would be appropriate. I would therefore give judgment for that figure.

Lord Justice Stanley Burnton:

[17]I agree.

Lord Justice Ward:

[18]I also agree.

Order

Appeal allowed

Cited in 2 later judgments