Whiteford v Kubas UAB [2012] EWCA Civ 1017

Case No B3/2011/2464[2012] EWCA Civ 1017
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CAMBRIDGE COUNTY COURT
(MR RECORDER FOY QC)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday 9 th May 2012
Before
LORD JUSTICE LAWSLORD JUSTICE RICHARDS
Between
WhitefordRespondent/ClaimantKubas UAB (A Company)Appellant/
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No : 020 7831 8838Official Shorthand Writers to the Court)
Mr Jonathan Watt-Pringle QC and Mr Peter Freeman (instructed by Pierre Thomas & Partners) appeared for Appellant.Mr Andrew Axon (instructed by Minster Law Solicitors) appeared for Respondent.
Judgment
[1]This is an appeal against an order made by Mr Recorder Foy QC, sitting in the Cambridge County Court, following a trial of liability arising out of a road traffic accident. The accident occurred at approximately 10am on 24 April 2009, when the claimant was riding a 750cc motor cycle along a country road near Ely and his right leg struck the front offside corner of an articulated lorry coming in the opposite direction. The claimant suffered a serious leg injury as a result of the impact. The lorry was owned by the defendant and driven by the defendant's servant or agent, a Mr Norkus.[2]The Recorder made a finding of primary liability against the defendant but with 50 per cent contributory negligence on the part of the claimant. In this appeal the defendant contends that the Recorder was wrong to find the defendant liable at all; alternatively that the claimant's contribution ought to have been assessed at a much higher level, the figure put forward being 80%.[3]The road in question was a narrow road with one lane in each direction and subject to the national speed limit of 60 mph. The claimant was driving northwards. He drove round a right-hand bend and then a left-hand bend. The lorry was coming in the opposite direction and the point of impact was either immediately after or just towards the end of the left-hand bend, viewed from the claimant's perspective. The Recorder saw no reason to doubt the claimant's evidence that he was travelling along the road at about 50 mph. The claimant was an experienced driver, indeed a driver of lorries, but not an experienced driver of motorcycles. He had obtained a motorcycle licence in February 2008 and had purchased in January 2009, shortly before the accident, the motorcycle he was riding at the time of the accident. He knew that lorries used the road. He gave evidence that as he came round the bend he saw this lorry. It was common ground that he and the lorry driver would have had the opportunity to see each other when they were about three seconds apart, but the accident reconstruction experts also agreed that neither driver would have been able to assess the lateral position of the oncoming vehicle within the carriageway until about a second later, that is about two seconds before the impact: the drivers’ view of each other would have been hampered by a change in the elevation of the road, the bend to which I have referred and a large mature tree to the side of the road.[4]The claimant's evidence was that when he saw the lorry the cab appeared to be over the broken white line in the centre of the road. His case was that the lorry was too far over, that it should have been within its own lane and that, had it been, the accident would not have occurred.[5]The claimant did, however, accept that he was at fault himself because he could, as he put it, have tightened the bend a little, that is he could have driven further over to his left. He also accepted that the proper line for a motorcycle driving round this particular bend would have been in the centre of his lane and that, had he been in that position, the two vehicles would have passed safely. He accepted in cross-examination that the line he adopted took him closer to the centre than he should have been. He said he did not anticipate the danger that would be caused by a large lorry coming in the opposite direction on that bend. He agreed that this was a mistake on his part. He said that when he saw the lorry encroaching on his side of the road he panicked; but the Recorder observed that it was not clear exactly what, if anything, he did when he panicked: braking would not have helped him and it was probably too late to steer to the left to any significant degree. The Recorder also noted that in those circumstances it was rightly conceded by the claimant that he was contributorily negligent.[6]The experts agreed that the evidence suggested that neither vehicle was travelling particularly fast at the time of the impact. The Recorder judged that speed by itself was not an element in the causation of the accident. I should perhaps also mention that it was daylight, that the weather was fine and the road surface was dry, so there were no other factors of particular relevance with regard to the causation of the accident.[7]The Recorder said that the driver of the lorry was a professional driver driving a large vehicle on a narrow road and that he must or should have realised how important on a country road it was to keep to his left as far as possible. The driver had not in fact given evidence, having apparently been unable to get to the UK from Lithuania where he was domiciled; so he had been unable, as the Recorder put it, to contradict the evidence given by the claimant, who struck the Recorder as an honest witness.[8]Because of its importance for the issue of primary liability, the Recorder dealt in some detail with the position of the lorry in the road. He said that on the approach to the point of impact, each lane was 2.85 metres wide, but at the point of impact the road had narrowed so that the lorry's lane was only 2.7 metres wide. Those width figures relate to the distance between the centre of the broken white centre line and the centre of the continuous white line at the edge of the road. The experts agreed that the distance between the two lines themselves (i.e. excluding any part of the lines) at the point of impact was 2.6 metres.[9]The Recorder referred in his judgment to the lorry itself as being 2.6 metres wide. That was an error. The joint experts' report stated, and it is not in dispute, that the width of the lorry was about 2.5 metres. On the basis of the figure of 2.6 metres stated by the Recorder, he noted that, if the lorry was entirely within its own lane, it would take up most of the lane, leaving only 0.1 metres of free road, but that it was clearly possible for the lorry to be entirely on its correct side of the road. Although the figures he used were slightly in error, exactly the same reasoning applies on the basis of the correct figures, that is to say on the basis that the lorry was actually 2.5 metres wide and the width of the lane (between the two white lines) on the lorry's side of the road was 2.6 metres.[10]The experts were agreed that, at the point of impact, the front wheels of the lorry were on the central white line and just over it into the opposite lane (that is, into the claimant's lane). The claimant's evidence, which the Recorder accepted, was that the lorry was over the centre line when he first saw it. In particular the Recorder accepted these statements by the claimant:
"I only panicked when I saw the lorry on my side of the road. His position did not look right. He was encroaching and I panicked. My picture at the time was that it was over the centre line. Most of it was on the line and the cab appeared to be over the white line."
[11]In the light of all of this, the Recorder found as follows, at paragraph 11 of his judgment:
"In my judgment what happened here is that on the approach to the bend the lorry was over the centre line, not by a lot and certainly not more than two feet, possibly less, but avoidably over the white line and enough to cause the claimant to panic. The lorry then braked or steered. It is impossible to say precisely what the lorry driver did. By the time of the impact, the front wheels were in the position shown on the photograph at the top of page 95 which the rear wheels were in on that photograph; in other words on the white line and just slightly over it. I bear in mind, as I have said, that it was a narrow road. It was all the more important, therefore, for Mr [Norkus] to be very careful about his position on the road and, if he had been in the position shown in photograph 93 at the time of impact, all would have been well."
It will be apparent that the first photograph referred to (on page 95) showed the wheels of the lorry on and just over the centre line, whereas the second photograph (on page 93) showed it entirely within its own lane.[12]In that passage the Recorder said that on the approach the lorry was not over the centre line by a lot and certainly not more than two feet. In fact, however, on the evidence before him it cannot have been anywhere near two feet and cannot indeed have been much further over than it was at the point of impact. The experts were agreed, as set out in their joint report, that the skid marks indicated that, as the vehicles approached, the offside wheels of the lorry would have been on the centre white line of the road.[13]The Recorder went on to find that the encroachment into the claimant's lane on the approach to the bend and at the time of the impact was causative of the accident and that primary liability was established. Thereafter he dealt with the issue of contributory negligence.[14]As regards the finding of primary liability, Mr Watt- Pringle QC on behalf of the appellant submits that the Recorder was simply wrong to find that the driver of the lorry had driven negligently. In particular, he submits that, given the relative sizes of the lorry and the carriageway, it was a counsel of impossibility to hold that the driver should have driven his vehicle even closer to the side of the road than he did, that is to say a few inches further to the left. Mr Watt-Pringle points to the difficulty for a driver of judging, from his position within the cab, so precise a position within the road. He submits that attempting to drive any closer to the nearside would have given rise to risks of its own. He points out that the experts were agreed that the driver of the lorry reacted within two seconds to the appearance of the motorcycle, and submits that there was no reason to suppose that the driver could have done more than he did in the circumstances. By contrast, he drew attention to the claimant's admission that there was ample room in his lane for him to drive past the lorry safely and to the evidence of the claimant's own expert, Mr Seston, who considered that if the claimant was positioned just to the nearside of the centre line as he entered the bend then he should have had sufficient time and distance (with proper observation) to modify his course and bring the motorcycle back more towards the centre of his lane prior to the arrival of the lorry, and that the claimant had "got this corner wrong".[15]Mr Watt-Pringle reminds the court that the lorry driver's duty was to take reasonable care and that the court must avoid the danger of evaluating the standard of care "by reference to fine considerations elicited in the leisure of the court room, possibly with the liberal use of hindsight" (see Ahanonu and South East London and Kent Bus Company Limited [2008] EWCA Civ 274 at paragraph 23 per Laws LJ).[16]In seeking to counter those submissions, Mr Axon on behalf of the claimant, the respondent to this appeal, places emphasis on the judge's finding that the lorry was avoidably over the centre white line as it approached the corner and submits that the Recorder was plainly correct so to find. He submits that the driver of the lorry approached the bend, which of course was for him a right-hand bend, over the central white line and had not regained his side of the road by the time of the collision. He points to the importance of keeping well to the left especially when approaching a right-hand bend so as to improve one's view of the oncoming traffic, a point which he underlines by reference to paragraph 460 of the Highway Code.[17]I should also mention another provision of the Highway Code which Mr Axon seeks to draw support from, namely paragraph 127, which states that when the broken white line at the centre of the road lengthens and the gaps shorten it means that there is a hazard ahead, and goes on to say “Do not cross it unless you can see the road is clear and wish to overtake or turn off.” Mr Axon submits that the line was lengthening and the gaps shortening and that paragraph 127 therefore applied at the point of this accident. This was a matter not investigated at the trial and not dealt with in the experts' report, and for my part I would be unwilling in the circumstances to draw any conclusions simply from a study of the photographs.[18]In any event Mr Axon suggests that the lorry could and should have taken up a safe position within its own lane on the approach but that, as it was, it was in an unsafe position from which it was unable to recover so as to avoid the collision. He stresses that even at the point of impact the lorry was on or just over the central white line and that there was sufficient room within its lane for it to have been fully within that lane All of this is said to render unassailable the Recorder's conclusion that the lorry was avoidably over the line and onto the claimant's side of the road.[19]Mr Axon further submits that the size and position of the lorry in the road caused the claimant to panic, as he said in his evidence. It seems to me, however, that whilst the claimant did give evidence of having panicked it really does not take matters any further. He did not say in his evidence in what way such panic caused him to act and, as I have already noted, the Recorder said it was not clear what exactly the claimant did, if anything, when he panicked. The Recorder's view was that there was in effect nothing that he could realistically do at that point.[20]Whilst Mr Axon rightly points out that the claimant was at all times on the correct side of the central white line, the fact is of course that this was an entirely avoidable accident if the claimant had taken the correct line around the bend. But I am conscious that, in saying that, I am probably trespassing into the area of contributory negligence. Now that I have summarised the submissions from both sides, let me return to the prior question of primary liability.[21]The point is ultimately a very short one. I have well in mind the cautionary remarks of Laws LJ in Ahanonu that one must avoid a counsel of perfection and that the focus must be on the standard to be expected of a reasonable and prudent driver in the circumstances that existed at the time. We are not concerned here with any material dispute of primary fact. To the extent that there were any errors in the Recorder's judgment, there is no dispute as to how they are to be corrected. We are concerned with an assessment of whether negligence was established on the primary facts as found. It is therefore open in principle to this court to substitute its own judgement for that of the court below. Nevertheless the Recorder, as the trial judge who had heard the evidence, including the expert evidence, was obviously well placed to form the requisite assessment and I think it right to approach with a degree of caution the invitation to depart from his finding of liability.[22]Having said that, what I find striking about this case is that the road in question was a relatively narrow country road and that the lane on the lorry's side of the road was barely wide enough for the lorry to fit into it. I have recited the precise measurements and need not repeat them. I do not accept that by straying onto and just beyond the central white line, even on the approach to what was for the lorry a right-hand bend, the driver of the lorry acted in the circumstances in a way in which a reasonable and prudent driver would not have acted. On the contrary, I take the view that it was perfectly reasonable of the driver to have given himself a modest margin of room on the nearside by going onto or even just over the central white line while traveling on this section of road. The situation with which he was faced is by no means unusual on country roads. I accept the submission advanced on behalf of the appellant that for the lorry driver to have driven on or extremely close to the side white line at the edge of the road would have been to create its own risks. It does not seem to me that he can be subject to proper criticism for having taken a course which kept him very slightly out from the very edge of the road.[23]The reasonableness of driving in the way he did is of course subject to the question of speed, but in this case there was, on the Recorder's findings, as I have said, no question of excessive speed. Nor indeed is there anything to suggest that, had a car been coming in the opposite direction, the vehicles would have been unable to brake and/or manoeuvre so as to avoid a collision. With a motorcycle there should have been no problem at all, provided that the motorcycle had taken a proper line around the bend.[24]I feel an obvious sympathy for the claimant, given the very serious injury he sustained, but for the reasons I have given I respectfully take a different view of the case from that reached by the Recorder. In my judgment the facts were not such as to establish a breach of duty on the part of the lorry driver. To find negligence in this case would to my mind be to impose an unacceptably high standard on the driver of the lorry. Accordingly I take the view that the Recorder fell into error in making the finding of liability against the defendant. I would allow the appeal and dismiss the claim.[25]I agree that this appeal should be allowed and the claim dismissed for all the reasons given by Richards LJ.

Order

Appeal allowed

Cited in 1 later judgment