Gray v Gibson [2014] EWCA Civ 355

Case No B3/2013/2080[2014] EWCA Civ 355
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT
SITTING AT STOKE-ON-TRENT
Venue Royal Courts of JusticeDate Tuesday, 4 March 2014
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE LONGMORE
LORD JUSTICE PATTEN
LORD JUSTICE CHRISTOPHER CLARKE
Between
GRAYAppellantv
Between
GIBSONRespondent
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 D Boyce (instructed by Sheldon Davidson Solicitors) appeared for AppellantMr S Maddison (instructed by Hill Dickinson LLP) appeared for Respondent
J U D G M E N T

LORD JUSTICE LONGMORE:

[1]The B5417 Oakmoor road is a two lane country road running roughly south west to north east between Cheadle and the road to Alton Towers in Staffordshire.[2]At about 7.45 am on 5 April 2010, Miss Nicola Gray was driving her car, a Suzuki Grand Vitara, from Cheadle with a friend and a colleague, Natalie Powell, in the front seat. Mr James Gibson was driving his Scania lorry in the opposite direction. The weather was fine, but the road was slightly damp. At a bend in the road, left for Miss Gray and right for Mr Gibson, the vehicles collided.[3]The road was no more than 16 and a half feet wide at that point. The Vitara car was 5 foot 10 inches wide and the Scania lorry was 8 foot 6 inches wide. Mr Gibson should, therefore, have been aware and no doubt was aware that his lorry would inevitably encroach on to the other side of the road.[4]District Judge Schroeder at Stoke-on-Trent County Court found that Miss Gray was driving her car at about 30 miles an hour and Mr Gibson was driving his lorry at about 25 miles an hour. There is unfortunately no transcript of his judgment, but according to an agreed counsel's note, he held that the collision halted the car in its tracks after a slight skid while it braked. The lorry travelled beyond the point of collision some yards into a hedgerow.[5]The judge further held that the car was about 1 foot out from the verge on the side of the road and the lorry was 2 feet away from the verge on the lorry's side. That meant that the lorry was 10 foot 6 inches out into a road which was only 16 foot 6 inches wide and therefore, more than 2 feet on to Miss Gray's side of the road.[6]In these circumstances, the judge held that there was what he called "additional responsibilities" on the lorry driver to be careful as to the means of his driving and that he did not have sufficient visibility round the bend to be driving at 25 miles an hour. He found that Mr Gibson was liable because he was driving too fast.[7]The judge then went on to hold that Miss Gray was herself negligent in driving at about 30 miles an hour round the bend. He said that the fact that she had skidded showed she was driving too fast and that had contributed significantly to the accident. He also said that the accident would not have happened if she had been driving more slowly and had stopped more quickly. He assessed her contribution to the accident as 40 per cent so he held she could recover 60 per cent of her damages which remain as yet to be quantified.[8]Miss Gray now appeals on two main grounds. First, she says she was not negligent at all in driving round the bend at 30 miles an hour. She asserts that the judge started by presuming a 50/50 apportionment of liability and did not ask himself whether Miss Gray was negligent in the first place.[9]Secondly, she says that if she was negligent, the judge never assessed adequately or at all the cumulative causative potency of Mr Gibson's negligence and her negligence. If he had done that he would have assessed Miss Gray's responsibility at much less than 40 per cent.[10]On the question of whether Miss Gray was negligent, Mr Boyce on behalf of Miss Gray, makes four points. First of all, he says the judge started with a percentage of 50/50. He derives that from the transcript which curiously does survive of the case management conference for this case that took place on 28 February 2013. The issue in the case management conference was whether liability should be tried before or with quantum. The District Judge decided that liability should be tried first because, as he put it:
"Once it is got out of the way, then it makes things like interim payments and so on much more straightforward. It takes away any worry she may have concerning the litigation."
He then adds this:
"I think she is certainly going to succeed. I mean, we all know these country road collisions. That she is going to succeed to a percentage. It is only a case of where the line was drawn my starting point [and it] is always 50/50 until you see and what I make of the parties when I hear them and I drive down country lanes every day going to and from work."
[11]Mr Boyce's second point is the judge failed to have regard to the general lack of credibility of Mr Gibson who had asserted that he had himself been driving at 10 to 15 miles an hour. He could not remember the direction of the bend and said that he had stopped before the collision when the judge found that he had not.[12]Thirdly, Mr Boyce submits that the judge should, in fact, have found that Mr Gibson was driving faster than 25 miles an hour.[13]Fourthly, he submits that Miss Gray cannot be criticised for driving at a speed of 30 miles an hour on a road that was not restricted in speed limits, apart from national speed limits, when she herself was always well on her side of the road.[14]To take Mr Boyce's first point, I for my part do regard it as somewhat unfortunate that in the case management conference the judge said his starting point in these kind of cases was always 50/50. It is true that he adds "until you see and what I make of the parties when I hear them". No doubt he had in mind that his position could alter during the evidence. But to start with a proposition that even notionally that both parties are likely to be held negligent and it is just a matter of deciding what the apportionment is, is, in my judgment, the wrong starting point.[15]What a judge has to do in these cases is, first of all, assess whether the defendant was negligent and secondly, if relevant to assess whether the Claimant herself was negligent. It is fair to say that when the judge came to deliver his judgment at the end of the hearing that is more or less what he did, but the parties must be left wondering whether or not, having said what his starting point was, he was prepared to shift sufficiently from it.[16]As far as Mr Boyce's second point is concerned, it does not seem to me that the fact that Mr Gibson was found not to be credible in the ways that Mr Boyce identified can actually help to decide the question of whether Miss Gray was herself negligent.[17]As to the finding of fact that Mr Gibson was driving at about 25 miles an hour, the judge rightly rejected Mr Gibson's own evidence that he was driving at 10 to 15 miles an hour. The judge further says that the tachograph, which we have been shown but in respect of which there is no expert report, shows a slowing down to 25 miles an hour. The judge adds " . . . and is straight until the time of the collision."[18]The judge's inference that the speed of the lorry driver was only 25 miles an hour seems to me a somewhat generous one since, on any view, the tachograph shows a slowing down from a speed at the relevant moment from a speed of 50 kilometres or 30 miles an hour. Nevertheless, the fact that the judge may have been slightly generous to Mr Gibson in that respect can hardly be dispositive of the case.[19]Mr Boyce's fourth ground, however, is much stronger, in my view. He says Miss Gray just cannot be criticised for driving well on her own side of the road at 30 miles an hour. The judge accepted her evidence that she was used to meeting large vehicles such as buses on that road and passing them safely. The judge does not appear to have considered whether she should have expected to meet a large lorry about 2 feet over the central line of the road. I should say that line is a notional line because there is no white line on the road, but nevertheless, the lorry when the collision occurred was approximately 2 feet over that line.[20]In my judgment, Miss Gray cannot be blamed for failing to foresee that eventuality. A lorry driver who is crossing the middle line of a road has a particular duty of care when rounding a bend. He should not be driving at a speed at which he cannot stop within a visible distance. Whether by comparison or on its own, any consideration of Miss Gray's position seems to me to be that she cannot be criticised for failing to foresee that a lorry driver would not take that obvious precaution.[21]In the circumstances of this case, despite Miss Gray proceeding at 30 miles an hour, I cannot bring myself to see how she could be described as driving negligently, so Mr Boyce's fourth contention succeeds. It is, therefore, not necessary to consider any question of contributory negligence.[22]I would allow this appeal and hold that Mr Gibson was 100 per cent liable for the consequences of Miss Gray's accident.

LORD JUSTICE PATTEN: I agree.

LORD JUSTICE CHRISTOPHER CLARKE: I agree.