Wheeler v Gloucestershire Constabulary [2013] EWCA Civ 1791

Case No B3/2013/0597[2013] EWCA Civ 1791
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of JusticeDate Wednesday, 18 December 2013
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE LONGMORE
LORD JUSTICE LEWISON
LORD JUSTICE FLOYD
Between
WHEELERAppellantv
Between
THE CHIEF CONSTABLE OF GLOUCESTERSHIRE CONSTABULARYRespondent
DAR Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr A Davis (instructed by Sintons) appeared for AppellantMr C Walker (instructed by DAC Beachcroft) appeared for Respondent
J U D G M E N T

LORD JUSTICE LONGMORE:

Cheltenham

[1]Road East runs between Cheltenham and Gloucester on an approximately north east to south west axis. There is a police station on the north side of the road.[2]At about 8.50 pm, and therefore, when it was dark, on Thursday, 30 September 2008 PC Ford was driving with another police constable as his passenger from the Cheltenham direction in a white Mercedes Vito van. He was intending to turn right into the entrance to the police station. In executing this manoeuvre, he not only did not stop, he did not even to look to see if there was oncoming traffic driving from Gloucester in the Cheltenham direction.[3]Mr Sonny Curran was driving a white Rover Metro, with Mr Ryan Wheeler as his passenger, in the direction of Cheltenham. This part of the road was subject to a 30 miles per hour speed limit, but Mr Curran was driving, on the judge's finding, at a speed of at least 55 miles an hour.[4]There was a horrendous crash. Both Mr Wheeler and Mr Curran suffered extensive injuries. Mr Ford and his passenger escaped more lightly. Mr Wheeler and Mr Curran sued the Chief Constable as being legally responsible for the negligent driving of his police constable. Not surprisingly, HHJ Harrington of Gloucester County Court in a trial confined to liability held that both Mr Curran and Mr Ford were negligent. He then had to apportion liability.[5]The only question before us is whether his apportionment was correct. It has been said on many occasions that this Court is very reluctant to interfere with the trial judge's apportionment of blame. See, for example, Plum v Ayres, The Times, 16 March 1999 and West and Wilkinson [2008] EWCA Civ 1005.[6]Moses LJ, however, gave permission to appeal in this case because he considered that it was arguable that the judge did not find "sufficient facts to justify" the apportionment to which he came. The judge put the matter in this way:
"I find that both drivers were negligent. Had PC Ford kept a proper look out, the accident would not have happened and had Mr Curran not driven at a excessive speed, the accident also would not have happened. Therefore, I should have regard to the causative potency of the negligence of each driver and in all the circumstances, I conclude that liability in this case should be shared equally between them and, therefore, I am going to say 50 per cent liability on the defendant [in other words, PC Ford] and 50 per cent on the driver Mr Sonny Curran [the second Claimant]."
[7]Mr Wheeler's claim was settled, we understand, at an early stage; he, of course, having a cast iron claim against both drivers.[8]Mr Curran was represented at the trial by Sintons of Newcastle upon Tyne and Mr Andrew Davis; solicitors and counsel instructed by Mr Curran's insurers. Sintons served a notice of appeal on Mr Curran's behalf asserting that the judge reached an apportionment not properly open to him on the facts and that Police Constable Ford was more to blame that than Mr Curran.[9]Issues have subsequently arisen in relation to Mr Curran's insurance cover. Sintons have come off the record, leaving Mr Curran unrepresented. He has played no part in this hearing though he was served with notice of what is happening at his last known address.[10]On 6 December of this year, I gave Mr Curran's insurers Southern Rock Insurance Limited permission to intervene in the appeal in their own name since they will have an interest in the outcome of the appeal if it turns out Mr Curran's insurance cover is valid and effective. Southern Rock have continued to instruct Sintons and Mr Andrew Davis. Mr Davis has said everything that could have been said if Mr Curran had been present and argued the appeal himself.[11]Mr Davis submitted in his skeleton argument and orally to us that Mr Curran's only duty was limited to guarding against the negligence of others. The negligence of Mr Ford on the other hand comprised said Mr Davis; one, failure to keep any, let alone a proper, look out; two, failure to stop or at least pause before turning right; three, failure to have regard to hazard markings in the centre of the road; and four, failure to wait for a safe gap in the oncoming traffic.[12]That submission, in my judgment, over eggs the pudding. It underplays the negligence of Mr Curran who, of course, had a duty to guard against the negligence of others, but he also had the duty to comply with the speed limit and certainly a duty not to exceed it by as much as 25 miles an hour. When challenged about his speed, his disarming response was "you have to accelerate to get anywhere."[13]Mr Davis, however, relied in this context on the case of Grealis v Opuni [2003] EWCA Civ 177 for the proposition that exceeding the speed limit is not necessarily negligent and that a driver turning right to cross a carriageway is more to blame than an oncoming driver who is exceeding the speed limit. The judge in that case had held that the oncoming motorist was not to blame at all. This Court did say that that was not right and it did apportion the blame 80 per cent on the crossing moped driver and 20 per cent on the oncoming driver. Significantly, however, the speed of the oncoming driver was still in the 30s, albeit 37 to 39 miles an hour.[14]Mr Davis' submission also overplays Mr Ford's negligence which is two fold, in my judgment, rather than four fold. Even if one can express his negligence in various different ways by looking at different bits of the Highway Code, it boils down to failure to look and failure to stop. That is not to downplay Mr Ford's undoubted negligence.[15]In his arguments this morning, Mr Davis said that paragraph 42 of the judge's judgment which I have recited showed that there was really no reason given by the judge other than that both parties were negligent and, therefore, he was going to split it down the middle. That does an injustice to the judgment. As Mr Walker in his submission pointed out, the judge at paragraph 29 says in terms:
"I was invited to consider the issues, first, of negligence and then of the relative causative potency."
He then sets out the arguments and considers them.[16]It is true that when he comes to paragraph 42 he expresses his judgment shortly, but it is impossible to think that he, as Mr Davis tended to suggest, failed to have regard to the duties on each party in assessing the relative blameworthiness of each of them.[17]The judge's task was to assess what, in the wording of the Law Reform (Contributory Negligence) Act 1945 was "just and equitable having regard to the Claimant's share in the responsibility for the damage." The judge did have regard to both responsibility and damage. He pointed out that the accident was a high velocity accident. Indeed, one can see that is true from the photographs.[18]He also had in mind the responsibilities of either party. Some judges might have decided that Police Constable Ford was more responsible for the accident than Mr Curran, but if so, that responsibility would, in my judgment, have only been marginally greater.[19]It seems to me that a 50/50 assessment was open to the judge, who heard the witnesses give their evidence; which, of course, this Court has not. For my own part, I would not interfere and I would dismiss this appeal, paying tribute, nevertheless, to the economy and force of both party's counsel.

LORD JUSTICE LEWISON: I agree.

LORD JUSTICE FLOYD: I also agree.

Cited in 1 later judgment