Goad v Butcher & Anor [2011] EWCA Civ 158

[2011] EWCA Civ 158Case No B3/2010/1477
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2010] EWHC 1144 (QB)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
His Honour Judge Seymour Q.C.
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 22 February 2011
Before
LORD JUSTICE MUMMERYLORD JUSTICE MOORE-BICKLORD JUSTICE JACKSON
Between
NICHOLAS OWEN GOADClaimant/(1) PETER BUTCHERDefendants/Respondents(2) W.I. BUTCHER & SONSRespondent
Mr. Andrew Davis (instructed by Taylor Vinters) for appellantMr. Jonathan Watt-Pringle Q.C.(instructed by Barlow Lyde & Gilbert LLP) for respondentsHearing Hearing dates : 20 th January 2011
Judgment
[1]On 15th June 2006 the claimant, Nicholas Goad, was riding his motorcycle along the B1411 road from Little Downham in the direction of Ely when he collided with a tractor and low-loader trailer driven by the first defendant, Peter Butcher. Mr. Goad was seriously injured as a result.[2]The accident occurred while Mr. Butcher was turning right off the B1411 into a lane called Cowbridge Hall Road. The junction lies at the crown of a gentle bend to the left when travelling from the direction of Ely towards Little Downham. There are houses and trees situated at intervals along both sides of the road. Photographs of the area give the impression of ribbon development of a kind that is found on the outskirts of many villages. The road is subject to a 30 mph speed restriction in Little Downham itself, but that is increased to 40 mph some distance from the junction with Cowbridge Hall Road.[3]The entrance to Cowbridge Hall Road from the B1411 is splayed and divided, having slip roads with entry and exit lanes on each side of a triangular island of grass. The layout and road markings at the junction indicate that traffic entering or leaving the lane in the direction of Ely should pass one side of the island and traffic entering or leaving in the direction of Little Downham the other.[4]Immediately before the accident Mr. Butcher was approaching Cowbridge Hall Road from the direction of Ely preparing to turn right into the first entry lane. He had been driving at about 16 mph but had slowed down to about 4 mph to make the turn. He indicated his intention to turn right and began his turn at a distance of about 10 metres from the centre point of the entry to the lane nearer to him. It is common ground that that resulted in his tractor and trailer entering the exit rather than the entry lane on that side of the island; in other words, he ‘cut the corner’ and was on the wrong side of the road. There was no harm in that, however, because, as he could see, there was no traffic in Cowbridge Hall Road that might be inconvenienced by his action. At the point where Mr. Butcher began his turn he could see for a distance of 110 metres along the road and at that point Mr. Goad was not in sight. If he had started the turn opposite the centre line of the entrance to the lane he would have been able to see for a distance of 130 metres.[5]As Mr. Butcher was making the turn into Cowbridge Hall Road Mr. Goad was approaching the junction from the direction of Little Downham. As he entered the bend he saw the tractor and trailer crossing the road ahead of him and braked hard. The expert witnesses agreed that he was travelling at between 55 and 65 mph. One of them thought he might have been going a little faster. As a result of his heavy braking the motorcycle began to skid and he lost control. Mr. Goad struggled to stay with the bike, which continued in a straight line, leaving the road and passing across the grass of the island before coming into collision with the tractor. Mr. Goad himself came to rest underneath the front of the trailer. By that time Mr. Butcher had almost completed the turn. The tractor and the front of the trailer were in the entrance to Cowbridge Hall Road; the rear of the trailer projected about half-way across one lane of the main road. The experts agreed that Mr. Goad would have had room to pass behind it safely if he had not lost control.[6]As a result of the accident Mr. Goad brought proceedings against Mr. Butcher claiming damages for personal injury. In the particulars of claim the case was put in two distinct ways. The first was based on the assertion that Mr. Goad was already in view when Mr. Butcher started his turn. On that basis it was said that if Mr. Butcher had seen him, he had been negligent in failing to give way; and if he had not, he had been negligent in failing to see him and to give way. The second way in which the case was put was that Mr. Butcher had cut the corner. On that basis it was said that he had been negligent in starting his turn before he had reached the point at which he had maximum visibility. If he had proceeded to that point, Mr. Goad would by that time have been in view and the accident would have been avoided. However, it was not said that 110 metres visibility was in itself insufficient to enable the turn to be made safely.[7]The judge devoted a considerable part of his judgment to the significance of cutting the corner, ultimately reaching the conclusion that it did not cause the accident but merely explained why the accident occurred at that particular place. The real question, he said, was whether it was negligent of Mr. Butcher to make the turn into Cowbridge Hall Road at the time and place he did, not whether, in the course of doing what he did, he may have infringed a provision of the Highway Code in a respect which had no relevance to the accident. Having considered the circumstances in which Mr. Butcher had acted, he found that Mr. Goad was driving too fast and was entirely to blame for the accident. He therefore dismissed the claim.[8]Mr. Davis, who argued the appeal very ably on behalf of Mr. Goad, accepted that the judge was right to regard the real question as being whether it was negligent of Mr. Butcher to make the turn into Cowbridge Hall Road at the time and place he did, although he submitted that he was wrong to say that the breach of the Highway Code was irrelevant. The real thrust of his argument was that Mr. Butcher was negligent in starting the turn too early, failing to reach the point at which his view of oncoming traffic would have been at its best and in consequence failing to observe the road markings at the entrance to Cowbridge Hall Road and cutting the corner, contrary to paragraph 156 of the Highway Code.[9]One can well understand the temptation in a case of this kind to place some emphasis on a breach of the Highway Code when it can be so clearly established, but in my view it was little more than an unfortunate red herring. A failure to observe the Code may be evidence of negligence, but whether it is will depend very much on the circumstances in which the act in question was committed and who is the claimant. In the present case cutting the corner would have been negligent towards any road user seeking to leave Cowbridge Hall Road in the direction of Ely, but would not have been negligent towards a road user seeking to leave by the other slip road in the direction of Little Downham. Nor, in my view, is it legitimate to argue that, if Mr. Butcher had not cut the corner, both he and Mr. Goad would have been in different places when he began the turn and the accident would not have happened. That is simply to postulate a different set of facts which are not linked in any causative way to a breach of duty on the part of Mr. Butcher to Mr. Goad. The judge was anxious to demolish that impermissible line of reasoning and did so at length, but he was in my view right, as Mr. Davis fairly conceded, to identify the real question as being whether it was negligent of Mr. Butcher to make the turn into Cowbridge Hall Road at the time and place he did.[10]Mr. Butcher had a duty to take reasonable care to avoid causing injury to other road users whom he should reasonably have foreseen might be affected by his actions. That means he had a duty to act as a reasonably prudent and careful driver of a slow-moving and lengthy vehicle. When undertaking a manoeuvre which necessarily involved obstructing the oncoming lane, albeit for a relatively short time, he had to take account not only of the length and speed of his own vehicle but of the risk that there might be another road user, then out of sight, who was close enough to come into view as soon as he started making the turn. He also had to make allowance for the fact that that road user might be exceeding the speed limit.[11]It can obviously be argued (as indeed Mr. Davis did argue) that a driver should not undertake a manoeuvre of this kind without putting himself in the best possible position to assess the risks posed to and by oncoming traffic, so far as the layout of the road allows. In the present case that meant proceeding to a point opposite the entrance lane of the slip road which is as far towards the crown of the bend as possible if one is not to overshoot. From that point one can see as far along the road as possible (in fact about 130 metres) and the risks of a collision are minimised. However, that, submitted Mr. Watt-Pringle Q.C., is a counsel of perfection and a driver will not be held negligent simply for failing to achieve that. What really matters is whether a view 110 metres along the road was sufficient for a reasonably prudent driver of a vehicle of the kind Mr. Butcher was driving.[12]The experts agreed that Mr. Goad was travelling at between 55 and 65 mph when he started to brake and the judge did not find it necessary to make any more precise finding. Mr. Davis submitted that he should have found that his speed was towards the bottom of that bracket, because there was evidence from a Mrs. Sykes, a motorist who had been overtaken by Mr. Goad shortly before the accident, that he had not been travelling very fast. Mr. Goad, on the other hand, accepted in cross-examination that he had been travelling at a speed considerably in excess of 40 mph. In the absence of more cogent evidence I should be minded to hold that he was travelling at about 60 mph, being the mid-point of the range given by the experts, whose conclusions were based on an analysis of the physical data – road layout, skid marks, location of the collision, damage to the motorcycle etc.. It may not matter very much, however, because the practical difference in terms of the time between seeing the tractor and the collision as calculated by the experts is small – only about 0.2 seconds. It is not without significance, however, that Mr. Goad lost control of the machine and that the experts also agreed that if he had been travelling at 40 mph he would have had time to stop safely. Nonetheless, it follows from the fact that Mr. Butcher should have foreseen that he might be exceeding the speed limit that that fact alone (as distinct from the speed at which he was actually driving) cannot of itself make Mr. Goad wholly to blame for what happened.[13]In the end it comes back to whether Mr. Butcher was negligent in starting his turn when he could see 110 metres along the road. In the course of cross-examination Mr. Butcher agreed that the further along the road you go the better the view round the bend. During a later reconstruction he was asked to place the tractor in the position at which he had started to make the turn and a photograph was taken of the view from the cab at that point. Mr. Butcher said that he also would not normally want to turn from that point. Mr. Davis naturally laid some emphasis on that evidence, but reading Mr. Butcher’s evidence as a whole it does not seem to me to go much beyond accepting what I have already described as the counsel of perfection. It is interesting to note that he also said that even when Mr. Goad came into sight he thought that the trailer would be clear of the road before the motorcycle reached him (as indeed it almost was).[14]In Clayton v Lambert [2009] EWCA Civ 237, [2010] R.T.R. 3, another case in which a motorcycle ridden at high speed collided with a vehicle turning right across its path, this court emphasised that one cannot infer negligence from the mere fact that an accident occurred and that judges must take care not to hold a motorist liable in negligence just because the accident might have been avoided if a different decision had been taken. In that case the court held that if the motorcyclist had been driving at a proper speed and had reacted correctly the accident could easily have been avoided.[15]In the end I have come to the conclusion that 110 metres visibility was sufficient on what was a bright summer’s day with a dry road and that Mr. Butcher was not negligent in failing to foresee that Mr. Goad might be travelling at a speed so far in excess of the limit on the outskirts of the village that he would be unable to control his machine and avoid a collision once the tractor and trailer came into view. In my view the judge was entitled on the evidence to hold that the accident was solely caused by Mr. Goad’s excessive speed. I would therefore dismiss the appeal.[16]I gratefully adopt Moore-Bick LJ’s summary of the facts, but I have the misfortune to differ from my lords as to the outcome of this appeal.[17]The Highway Code, in the form it was in June 2006, gave the following guidance in relation to turning right: “155. Well before you turn right you should• Use your mirrors to make sure you know the position and movement of traffic behind you• Give a right-turn signal• Take up a position just left of the middle of the road or in the space marked for traffic turning right• Leave room for other vehicles to pass on the left, if possible.• Position your vehicle correctly to avoid obstructing traffic 156. Wait until there is a safe gap between you and any oncoming vehicle. Watch out for cyclists, motorcyclists and pedestrians. Check your mirrors and blind spot again to make sure you are not being overtaken, then make the turn. Do not cut the corner.”• Use your mirrors to make sure you know the position and movement of traffic behind you• Give a right-turn signal• Take up a position just left of the middle of the road or in the space marked for traffic turning right• Leave room for other vehicles to pass on the left, if possible.• Position your vehicle correctly to avoid obstructing traffic[18]By cutting the corner, the defendant was in breach of paragraph 156 of the Highway Code. I do not regard this as a red herring.[19]S. 38 (7) of the road Traffic Act 1988 provides:
“A failure on the part of a person to observe a provision of the Highway Code shall not of itself render that person liable to criminal proceedings of any kind but any such failure may in any proceedings (whether civil or criminal, and including proceedings for an offence under the Traffic Acts, the Public Passenger Vehicle Act 1981 or sections 18 to 23 of the Transport Act 1985) be relied upon by any party to the proceedings as tending to establish or negative any liability which is in question in those proceedings.”
[20]A breach of the Highway Code does not give rise to a presumption of negligence or constitute a breach of statutory duty. It is, however, a relevant circumstance, which the court should take into account when determining whether the driver was negligent: see Powell v Phillips [1972] 3 All ER 864.[21]In this case the defendant was driving a tractor at 4 miles per hour and towing a trailer. He was turning right from a main road into a side road. The main road curved away to the left immediately after the junction. I do not regard it as a counsel of perfection to say that the defendant should have positioned his tractor correctly before starting to make the turn. Because of the dangers inherent in this manoeuvre, the defendant ought not to have cut the corner. He ought to have ensured that oncoming traffic would have the best possible view of his tractor, before he started to turn right. In other words, I accept the submission of Mr Davis on this issue.[22]Mr Watt-Pringle relies upon the fact that a distance of 110 metres is within the “typical stopping distance” of a vehicle travelling at 60 or even 70 miles per hour, as set out in paragraph 105 of the Highway Code. However, an earlier part of that paragraph (which was supplied to the court after the conclusion of the appeal) states:
“Remember, large vehicles and motor cycles need a greater distance to stop.”
[23]The road in question had a 40 miles per hour speed limit. However, it lay beyond the boundary of Little Downham and it was the main road to Ely. It was foreseeable, indeed inevitable, that some vehicles on that road would be substantially exceeding the speed limit.[24]It is perhaps significant that the defendant, in his unsuccessful attempt to deny that he cut the corner, asserted that such a manoeuvre would have been inappropriate. The relevant section of his cross-examination reads as follows:
“A. Well that don’t - - that don’t look right. That don’t look as though I’m near enough to the junction. Q. No, it looks like you are too far back, does it not? A. Yes. Q. You would not want to turn right from that position? A. Well, no, no, not normally. Q. As you drive around the corner - - let us make it very clear which corner I am talking about. As you are driving along Ely Road, your view around the corner improves, does it not. A. Yes, yes, that - - well, the farther up the road you can get you can see. Q. We can see on the bottom photograph that the trees are stopping us from seeing around the corner. A. Yes. Q. When you go further forward you can see further down the road, can you not? A. Yes, you would a bit, yes. Q. So in order to see what was coming you would want to be as far forward as possible before you turned right, would you not? A. Yes. Q. I think we have already agreed that the place to do that would be opposite the white lines in the centre of Cowbridge Hall Road. A. Yes. Well, yes, yes, you would have to start the turn when you was in the - - after the markings for the road. Q. You start to turn, you say, when you are opposite the markings? A. When you’re - - well, the mouth of the road opens out and you turn into it. You keep on your side of the road. ”
Q. No, it looks like you are too far back, does it not? Q. You would not want to turn right from that position?

Q. You start to turn, you say, when you are opposite the markings?

[25]Of course I accept that the question of negligence is for the court, not the defendant, to decide. I also accept that not every cutting of a corner in breach of paragraph 156 of the Highway Code constitutes negligence. However, I do consider that it was negligent for the driver of a tractor and trailer proceeding at 4 miles per hour to cut this particular corner. It created a foreseeable risk of injury to oncoming drivers.[26]I readily accept that the principal responsibility for this accident rests on the claimant, who was riding his motor cycle at a speed grossly in excess of the speed limit. In my view (which does not commend itself to my lords) the claimant’s appeal should be allowed, but his damages should be reduced by 75% for contributory negligence.[27]I agree that the appeal should be dismissed for the reasons given by Moore-Bick L.J.

Cited in 2 later judgments