Starks v Chief Constable of Hertfordshire [2013] EWCA Civ 782

Case No B3/2012/1438[2013] EWCA Civ 782
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CAMBRIDGE COUNTY COURT
Her Honour Judge Plumstead
0UH00625
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday 9 th July 2013
Before
LORD JUSTICE MOORE-BICKLORD JUSTICE PATTENLORD JUSTICE UNDERHILL
Between
JULIAN STARKSAppellantCHIEF CONSTABLE OF HERTFORDSHIRERespondent
(Transcript of the Handed Down Judgment 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 Nicholas Baldock (instructed by Tees Law) for AppellantMr Hugh Hamill (instructed by Weightmans LLP) for Respondent
JudgmentLord Justice Underhill :
[1]On 27 December 2007 there was a collision between a car driven by the Appellant and a police car being driven by PC Richardson of the Hertfordshire Constabulary. Both the Appellant and PC Richardson were injured, but the Appellant’s injuries were much the more serious. He brought proceedings for damages. On 23 May 2012 the issue of liability was determined at a trial in the Cambridge County Court before Her Honour Judge Plumstead. She held that the Appellant was 55% to blame for the accident and PC Richardson 45%. The Appellant appeals following permission granted by Moore-Bick LJ at an oral hearing.[2]Although PC Richardson had no recollection of how the accident occurred, and the Appellant very little, the Judge had the assistance of experts reports which were substantially in agreement about what could be inferred from the damage to the vehicles, their position following the accident and the marks on the road. There was also a useful witness statement from another driver. In those circumstances there is no dispute before us as to the primary facts.[3]The accident took place at the junction between two roads, Verity Way and Vardon Road in Stevenage. Verity Way is the more major of the two roads and runs north-south: it is subject to a 40 mph limit. Vardon Road, which is subject to a 30 mph limit, joins Verity Way from the west. It does not cross it, so that the junction is a T-junction. It is, however, configured as a mini-roundabout, with a painted roundel, surrounded by two concentric circles and directional arrows. The roundel is offset somewhat to the west, so that it lies directly in the path of traffic travelling north along Verity Way but not of traffic going south. All three entrances to the junction are marked with “give way” lines.[4]By para. 188 of the Highway Code the same rules apply to mini-roundabouts as to normal roundabouts. In particular, the Code states that vehicles “MUST pass round the central markings”: I take that to mean not only the solid roundel but the circles around it. Driving over the markings is clearly a breach of the Code. In the present case, the positioning of the roundel as described above meant that vehicles passing north along Verity Way would need, even if there were no other traffic on the roundabout, to deviate substantially to the left in order to pass round it. Although the roundabout no doubt has a traffic management function, the requirement for such vehicles to go round the roundel also has a safety consequence, since it means that if they are travelling at or near the permitted limit they will have to significantly moderate their speed. As discussed at para. 13 below, there was no expert evidence as to the maximum safe speed for properly negotiating the junction, but it was on any view well below 30 mph. The presence of the roundel should likewise affect the behaviour of vehicles turning right into Verity Way from Vardon Road, since they would have to describe a more generous curve to pass round it than if this were an ordinary T-junction; but that is of less significance in safety terms.[5]Drivers approaching any roundabout are required by para. 184 of the Code to:
“take notice and act on all the information available to you … [and in particular to] … • adjust your speed and position to fit in with traffic positions • be aware of the speed and position of all the road users around you.”

Para. 185 of the Code reads (so far as relevant):

“When reaching a roundabout you should • give priority to traffic approaching from your right, unless directed otherwise by signs, road markings or traffic lights • check whether road markings allow you to enter the roundabout without giving way …”
Para. 185 of the Code reads (so far as relevant):[6]The accident occurred at 5:30 p.m., which was after dark; but the junction was well lit and both vehicles had their lights on, and there should have been no problem about visibility. The Appellant was approaching the junction along Vardon Road, intending to turn right. PC Richardson was approaching it along Verity Way from the south, intending to carry straight on. Each should clearly have been visible to the other for at least five seconds before they entered the roundabout. The Appellant reached the roundabout first and entered it and began his right turn, taking a line which involved passing over the top part of the roundel. PC Richardson entered the roundabout very shortly after him. She did not moderate her speed or her course in any way and was taking a line that involved passing directly over the middle of the roundel. She struck the Appellant’s car in the centre of the junction, on the roundel itself. Her car was pointing straight ahead at the moment of impact. The Appellant’s car was at a roughly 45 degree angle to hers because he was in the middle of his right turn; it was struck directly in the area of the central pillar and the driver’s door.[7]PC Richardson’s car was moving at a speed of 30 mph immediately before impact: she had not, as I have said, reduced her speed as she approached the junction. The Appellant was travelling at 15 mph at the moment of impact: it is not clear whether that represents his speed as he approached and entered the junction or whether he had been decelerating to make his turn. The Respondent’s expert estimated that at the moment that the Appellant entered the roundabout PC Richardson was at most 13 metres, or about a second, away from the junction, and the joint statement of the experts was that he entered it only “marginally” before her. The Judge’s finding was that the Appellant entered the roundabout “significantly, albeit only by a small amount, ahead of [PC Richardson]”.[8]It is not in dispute that both drivers were substantially at fault. The issue is their relative culpability.[9]It is convenient to take by way of preliminary a submission by Mr Hamill for the Respondent (who did not appear below) that a fundamental factor in deciding the question of relative culpability is which driver had formal priority. He relies on the provision of para. 185 of the Code which requires drivers reaching a roundabout to “give priority to traffic approaching from your right”. He submits that that means that a driver should not enter a roundabout if doing so would “inconvenience” any driver approaching from the right – i.e. cause him or her to have to brake or deviate – and that the drivers to whom priority must be given are not only those who are actually on the roundabout but also those who are approaching it and are sufficiently close to be inconvenienced by a driver entering the roundabout ahead of them. That was plainly the case with PC Richardson in view of her proximity to the junction and the speed at which she was approaching. He points out that the Appellant’s own expert referred to PC Richardson as having “right of way” (report para. 4.22) and that the experts in their joint statement (para. 17) agreed that when reaching the roundabout the Appellant was “required to give priority to traffic approaching from his right”: the latter statement strictly speaking does no more than repeat the terms of the Code, but he submits that in context it was plainly intended as an endorsement of what the Appellant’s expert had already said about PC Richardson having right of way. He submits that in those circumstances it was inevitable that the principal blame should lie with the Appellant.[10]I should start by observing that the issue of priority does not appear to have received much detailed analysis at trial. The passage in the Appellant’s expert’s report on which Mr Hamill relies begins by expressing the opinion that “whilst … [the Appellant] entered the junction … prior to [PC Richardson], [he] should have exercised restraint and not entered the junction when he did”. That way of putting it seems to imply that it was in truth the Appellant who had the strict right to proceed because he had reached the roundabout first, but that he ought as a matter of “restraint” not to have exercised that right; but that appears to conflict with the statement which follows about PC Richardson having “right of way”. Mr Baldock, for the Appellant, told us that the issue was not really debated at the trial and that the case proceeded on the basis, agreed by the Respondent’s expert, that the question of priority was “a matter of judgement”. The issue is not explicitly addressed by the Judge.[11]I do not accept that in the particular circumstances of this case the question of formal priority has the importance which Mr Hamill seeks to attach to it. In the paradigm case of a typical “full” roundabout – which is the apparent subject of para. 185 of the Code (which indeed contains an illustration of such a roundabout) – the distances involved, and the speeds of approach dictated by the configuration of the roundabout, are such that drivers approaching it will not normally be “inconvenienced” by another driver entering ahead of them from the next road on the left; and “priority” will thus only be a realistic issue as regards vehicles already on the roundabout. I accept that there may be cases – most obviously on a mini-roundabout, where the distances are much shorter – where a driver who has not yet reached the roundabout may be inconvenienced by a vehicle entering the roundabout before him from the next entrance to the left, but that is only likely to be the case if he is approaching at an inappropriate speed: any driver approaching a roundabout should be doing so at a moderate speed which enables him – as the experts agreed in their joint statement (see para. 27) – to stop if necessary. The truth is that in a case where two drivers are approaching a mini-roundabout, one being closer but the other travelling faster, the rules about priority may not give a black-and-white answer: which ought to accommodate the other will, as was apparently accepted at trial, involve an exercise of judgement on the part of each drivers, with each being prepared to stop at the give way line if there is room for doubt about the other’s intentions. Thus considerations of formal priority do not seem to me decisive in the present case of which driver was more to blame. I turn to consider the culpability of each in turn.[12]Starting with PC Richardson, it is common ground that she simply ignored the fact that the junction was a mini-roundabout. As the Judge put it, instead of “slowing to a speed at which she could have gone round [the roundabout] in a proper and orthodox manner” – i.e. by taking a curving route round the roundel – she “just hared straight across it”. That was a plain breach of para. 188 of the Code. Mr Hamill submitted that it could nevertheless not be described as culpable. He relied on observations by both experts that showed that the great majority of drivers at this junction simply drove straight over the roundel. I cannot accept that submission. The rule is emphatic and explicit, and it clearly contributes to road safety. The fact that it may often be broken is neither here nor there.[13]Mr Hamill also submitted (though arguably this goes more to the question of “causal potency”) that even if PC Richardson had, as she should have, deviated her course around the markings she would not have had to reduce her speed in order to do so. He relied on the fact that the Judge had expressly asked the experts to say what was the maximum speed at which it would be safe to go round the junction in the proper way and that they had been unable to provide a figure. I cannot accept that submission either. It is correct that the experts were not able to commit themselves to a precise figure, but the Judge herself made a finding that it would have been “substantially less” than the 30 mph at which PC Richardson was travelling. That was a finding to which she was entitled to come and was indeed in my view plainly right. On any view PC Richardson should not have been travelling at more than 20 mph or so, irrespective of the Appellant’s presence.[14]Further, and quite apart from the previous point, PC Richardson should in my view have slowed down in any event because she should have seen the Appellant’s vehicle and anticipated the possibility of his entering the junction: he had reached it before her, even if only by a small margin, and, whatever the position about formal priority, she could not safely assume that he would simply wait for her.[15]As for the Appellant, he likewise could or should have seen PC Richardson’s car approaching and appreciated that by reason of its speed and proximity it was not safe to pull out. As the Judge put it, “he misjudged the speed and distance away of [her] vehicle and went onto the roundabout thinking he had time to complete his right turn when in fact he did not”. The misjudgement was serious because it led to him driving out, effectively, into her path. On the other hand, he was in my view entitled to expect that any vehicle approaching the junction at the speed that PC Richardson was would slow down because she was approaching a roundabout and in order to go round the roundel in the proper way.[16]On the basis of that analysis of the drivers’ respective culpability, I fear I cannot support the Judge’s conclusion that the Appellant was more to blame than PC Richardson. Both were clearly seriously at fault in failing properly to appreciate what the other might do, and to adjust their driving accordingly. But in PC Richardson’s case there is also the fact that she wholly ignored the existence of the mini-roundabout. In my judgment that is a serious additional feature which makes her the more culpable. In my view the blame should be apportioned 65:35. That was not the view of the Judge, but I have less compunction in differing from her because she did not give any reasons for her apportionment: she simply referred to the relevant legal principles and announced her conclusion.[17]It is of course the case that the apportionment exercise under the Law Reform (Contributory Negligence) Act 1945 requires an assessment not only of the respective culpability of the two drivers but of the relative “causal potency” of their respective (culpable) acts and omissions. But this is not a case where any distinction can be made between the parties’ relative culpability and their relative responsibility for the damage (i.e., in practice, for the Appellant’s injuries). It is suggested by Mr Hamill that even if PC Richardson had slowed up somewhat in order to cross the junction properly that would probably not have averted the accident, since there was less than a second between the time that the Appellant entered the roundabout and the moment of collision. But the experts were agreed that if she had entered the junction at 15 mph the accident would probably have been averted altogether and that if she had done so at 20 mph it would either have been averted or have been much less serious, because any collision would have been with the rear of the Appellant’s car. I accept that there was no agreed position that the configuration of the junction meant that PC Richardson ought to have reduced her speed to no more than 20 mph; but as discussed above, the Judge in substance made a finding to that effect.[18]I would accordingly allow this appeal and substitute the apportionment to which I have referred.

Lord Justice Patten :

[19]I agree.

Lord Justice Moore-Bick :

[20]I also agree.