Houghton v Stannard [2003] EWHC 2666 (QB)

Case No 03/TLQ/0121

[2003] EWHC 2666 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

Venue Royal Courts of Justice

Date Wednesday, 29 th October, 2003

Between

HOUGHTONClaimant

Strand

London WCA 2LL

B e f o r e:

MR JUSTICE McKINNON

__________

-v-

Between

STANNARDDefendant

__________

Tape transcription by Smith Bernal Wordwave Limited

190 Fleet Street, London EC4A 2AG

Telephone 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

__________

MR ANDREWS QC and MISS VICKERS appeared for CLAIMANT.

MR TICCIATI appeared for DEFENDANT.

__________

J U D G M E N T

[1]MR JUSTICE McKINNON: This is a running down action, in which the claimant claims damages for very serious personal injuries sustained on Wednesday 23rd December 1998 at about 1.30 p.m on the southbound carriageway of the A13 dual carriageway at Basildon. It was daylight. The weather was not good. It had been raining all day and the roads were wet. Primary liability is admitted by the defendant, but he alleges, in the Amended Defence, that the claimant is guilty of contributory negligence. This judgment is confined to the determination of that issue.

[2]The claimant was driving his red Metro car on the A13 south towards Southend. His car broke down and became stationary in the nearside lane, with its nearside about one foot from the white line marking the edge of the carriageway. To the nearside of that white line was an unprotected verge, consisting of about one metre of tarmac and then a grass and gravel verge in which there was a drainage channel. The claimant turned on his hazard warning lights. At the time of the collision the claimant was in his car.

[3]The defendant was driving a Mercedes van in the same southbound carriageway. He was driving in the nearside lane, approaching the slip road for the A176. Some vehicles were in the nearside lane, slowing down to go onto the slip road, and the defendant overtook them, going into the offside lane to do so. The A13 at this point forms a gradual right-hand bend, which goes under a bridge or overpass. I have a number of photographs depicting the scene. The claimant’s red Metro was some distance beyond the bridge, stationary, as I have described, on a slight incline. The defendant on his own account saw the red Metro at least 200 to 250 yards ahead beyond the bridge. Having overtaken the vehicles going into the slip road, the defendant then had a clear road in front of him. He decided to return to the nearside lane, which he did. He was then confronted with the red Metro, which he realised was stationary when he was only 50 yards from it. He was travelling at between 50 to 60 miles an hour. He braked as hard as he could, but a collision was inevitable. He ran into the rear of the red Metro, shunting it across the carriageway into the central barrier separating it from the northbound carriageway. The defendant had not seen the red Metro’s hazard warning lights, and realised, much too late, that the red Metro was stationary. The defendant’s account is that he did not swerve or move into the offside lane, because there was another vehicle in that lane not very far from overtaking him.

[4]There are now three live allegations of contributory negligence made against the claimant.(1) That he drove his car on this dual carriageway when he knew or ought to have known that it was at risk of breaking down.

(2) Having broken down, or in the course of breaking down, the claimant failed to drive or park his car either completely off the road or at least, as far as possible, to the nearside of the road to the very edge of the tarmac surface.

(3) That the claimant sat in the car, stationary as it was on the carriageway, having broken down, rather than taking up a position off the road.

[5]Mr Ticciati, on behalf of the defendant, makes the general point that, on the evidence, the claimant had ample time to plan what he did and to consider the consequences, whereas, following what, as Mr Ticciati put it, was an entirely understandable piece of inadvertence in failing to appreciate in time that the claimant’s car was stationary, the defendant was acting throughout in the agony of the moment. Mr Peter Andrews QC, for the claimant, on the other hand, characterises the defendant’s driving as “reckless” and denies that the claimant was in any way contributorily negligence.

[6]Mr Ticciati properly took upon himself the burden of proving contributory negligence and opened the case. He called two witnesses: Mr Simon Peasgood and Mr Melvyn Stannard, the defendant.

[7]Mr Peasgood had been present at the Basildon Magistrates’ Court on 8th November 1999, when, following a trial, the defendant was convicted of careless driving. At that trial the claimant gave evidence on oath. Mr Peasgood of the Norwich Union was present and took notes. That is not in dispute. Mr Peasgood’s notes, so far as material, read:

“Around 12 p.m., travelling home from work along A13, believes speed limit 50 miles per hour (?). Problems with car. Pulled over to left-hand side. Couldn’t remember stalling. Thought wet getting into electronics. Started by Basildon Hospital turnoff. Hoped car would right itself. Problem became worse. Decided to pull over just past flyover. Stopped on left-hand side. Got out. Popped bonnet, quick look, couldn’t see anything obviously wrong. Got back in car as slightly raining. Went to phone? Put hazards on before got out. Thinks lights on. Got back after phoning. Nothing happened for a while. Couldn’t say how long. Next thing, lifted into ambulance.”

I do not refer to any other part of the notes, as Mr Peasgood properly accepted that such could be his own comments rather than a record of what he heard the claimant say.

[8]It is also relevant at this point to refer to the claimant’s witness statement at page 86 of the trial bundle, in which he said:

“I am unable to remember anything about the accident or the events that occurred prior to the accident. However, I gave a statement to the police regarding the accident on 28th April 1999, and I am sure the statement I gave to the police was accurate and correct.”

[9]That witness statement, which is dated 28th April 1999, reads as follows:

“I was the owner of an Austin Metro motorcar. On Wednesday 23rd December 1998 I was driving this car along the Southend track of the A13 in the Basildon area. I believe that I was returning home from work. I remember that my car broke down in the area of the Five Bells and I pulled over to the left-hand side of the road. I had my lights on as it was lightly raining. When I stopped, I switched my hazard lights on and got out to have a look under the bonnet. I couldn’t see anything wrong and got back into the car to try and start it again. I don’t know how long I had been there, and my next memory is being put into the back of an ambulance. I am not sure what time I left work, as my memory of this has not returned yet.”

[10]The defendant gave evidence, stating that his witness statement, dated 28th October 1999, made for the purpose of these proceedings, is true. The material parts of that witness statement read as follows:

“As I came up to the Five Bells underpass I was on the nearside lane of the dual carriageway. There was a line of traffic in the lane ahead and most were indicating left to exit towards Basildon. I looked in my offside mirror and noticed it was clear for me to pull into the offside lane and overtake the traffic ahead. I moved into the outside lane. Just as I was level with the exit towards Basildon, I saw a red Metro on the inside lane, just past the bridge. The Metro was at least 200 to 250 yards ahead. I was doing 50 miles an hour at this point. I thought the Metro was moving. I didn’t see any lights lit on the Metro. I checked my mirrors and observed traffic coming up behind me quite fast. There were three cars and a van. I checked my nearside mirror to check if it was clear and safe for me to pull in. I signalled and pulled back in. At this point I was under the bridge. I looked ahead and realised the Metro was stationary. I was now less than 50 yards away. I still saw no lights on the Metro. The Metro was in the left-hand lane and about one foot away from the white line on the edge of the carriageway. The Metro was facing straight ahead. I checked my offside mirror, but the traffic in the lane was no more than 30 feet behind the van. I didn’t think it was safe to pull out. I braked hard and skidded. I slid on the wet road and hit the back of the Metro full on. I was doing about 45 miles per hour when I hit the Metro.”

A little later: “At the time of the accident visibility was fair. When I first saw the Metro there was no indication it was stationary. I didn’t see any hazard lights or indicators, and the Metro was facing along the carriageway and was not at any angle. A little later:

[11]The defendant accepted that he told the police at the scene:

“I was coming from London. I had come under the bridge. As I came under the bridge I realised the Metro had actually stopped. I looked in my offside mirror to see if it was clear to overtake. It wasn’t clear. I immediately applied the brakes. Although I was braking all the way, I just couldn’t stop in time.”

[12]The defendant further accepted that the transcript of his recorded interview under caution on 29th January 1999 with his solicitor present is accurate. He gave a very similar account to that in his later witness statement. It is necessary to refer to two passages only. At page 450 of the trial bundle he was asked when he first saw the red Metro, and he said:

“The first time I saw the red Metro was when I pulled out onto the right-hand lane to overtake.”

At page 451:

“I have always been wary, because, with the size of the van, I know it doesn’t stop as quickly as a car, because of the contents and the weight. I know that it is not going to be a case of put my foot on the brake and I am going to stop rapidly. I know it is going to take some time.”

In his evidence, the defendant said that his van was, on the day of the accident, loaded to less than half its full laden weight. At page 451: In his evidence, the defendant said that his van was, on the day of the accident, loaded to less than half its full laden weight.

[13]The defendant was cross-examined. “Question: It was as you came under the bridge that you realised the red Metro was stationary. Answer: Yes. Question: You braked, but you were much too close to avoid a collision. Answer: Yes. Question: You smashed into it at approximately 50 miles an hour. Answer: Approximately 50 miles an hour. Question: Having applied your brakes as heavily as you could. Answer: Yes. Question: Your van having skidded before striking the red Metro. Answer: Yes.” Then a little later he was referred to his witness statement and how he had seen the red Metro first when it was at least 200 to 250 yards ahead of him. It was put to him that there was then clear water between him and the red Metro, and he agreed. “Question: The next time you were aware of the Metro was after you had pulled back into the nearside lane and you are 50 yards from the Metro. Answer: Yes. Question: So you were by the slip road, you saw the Metro, you then travelled forward and pull into the nearside and look up, and you then see the Metro 50 yards away. Answer: Yes. Question: Then it is far too late to be able to brake to avoid the collision. Answer: Yes.” He agreed that once he had reached the 50-yard point away from the red Metro an accident was inevitable whether or not the offside lane was clear. He agreed that he had not seen the hazard warning lights on the Metro. He said:

“At no time at all did I see them.”

He agreed with this question:

“If the red Metro had been displaying hazard warning lights, you would have seen them, because the road was clear, there was no spray, it was not a foggy day, and there was nothing blocking your view. Question: If the Metro had had hazard lights on, would that have alerted you to danger ahead? Answer: Yes, I would have realised the Metro was in a problem, and I could have got past on the offside without a problem. The hazard lights would have been enough to alert me and the accident would have been avoided. Question: You needed no further warning. Answer: True. I would have carried on in the offside lane without problem.”

He agreed that he was travelling at somewhere between 50 and 60 miles an hour and had struck, as I have said, the red Metro when he was doing approximately 50 miles an hour. “Question: You knew the van couldn’t be stopped rapidly. Answer: Yes. Question: It is not like a saloon car. The van will take significantly longer to stop. Answer: Yes. Question: So you needed to allow a significantly greater braking and stopping distance. Answer: Yes. Question: That is just on a dry road. Answer: Yes. Question: The problem is even worse on a wet road. Answer: Yes. Question: Didn’t you think that driving at 50 or 60 miles an hour you were driving too fast for the conditions. Answer: No.” A little later:

“I thought I was driving safely. I still take the view I was driving carefully. I was at some fault.”

Then a little later he was referred to his witness statement and how he had seen the red Metro first when it was at least 200 to 250 yards ahead of him. It was put to him that there was then clear water between him and the red Metro, and he agreed. He agreed that once he had reached the 50-yard point away from the red Metro an accident was inevitable whether or not the offside lane was clear. He agreed that he had not seen the hazard warning lights on the Metro. He said: He agreed that he was travelling at somewhere between 50 and 60 miles an hour and had struck, as I have said, the red Metro when he was doing approximately 50 miles an hour. A little later:

[14]The witness statements to the police of three further witnesses were admitted in evidence and taken as read. The first of these is that of Lindsey Oliver. She did not witness the accident. She said:

“I am the holder of a full licence, which I have held for 18 years. At about 1.10 p.m. on Wednesday 23rd December 1998 I left my place of work and travelled home. I remember that the weather conditions on that day were poor as it had been raining. As I drove eastbound along the A13 I noted that the road surface was wet and visibility was poor, due to a combination of surface spray and the fact that it was a damp, misty day. As I approached the area of the Five Bells roundabout at Basildon [obviously driving underneath the roundabout] I was driving in the left-hand lane at a speed of about 60 to 65 miles an hour. The traffic conditions at that time were quiet for the road. As I approached the Five Bells there were no vehicles in front of me in either lane and a few vehicles in the distance behind. The area of the Five Bells has an underpass, which on approach from Lakeside goes into a dip directly below the Five Bells roundabout and bends slightly to the right in a gradual sweeping bend. As I approached the underpass and the road started to open up as I went into the bend, I saw hazard lights in the distance and was surprised to see a car stationary in the middle of the left-hand lane. I was surprised to see this car, because I remember thinking what a dangerous place to break down. I remember thinking, why was it in the middle of the lane, because if it had moved over to the left slightly towards the hard shoulder, then it wouldn’t have caused a problem. When I first saw this car I had time to look in my mirror and move over, but I remember that its presence caused me worry and concern due to the fact that it was obstructing my lane and I had to take immediate action to avoid it. Although I was caused concern, I managed to change lane to the outside lane in enough time so as not to cause a problem.”

A little later she said:

“I saw that the car was a red Metro and as I drove past I saw that it had one occupant sitting in the driver’s seat. That person, who I thought to be male, was sitting up in the driver’s seat with his shoulders back against the back of the seat. I could not see his hands, but he didn’t appear to be struggling with the controls or attempting to start the car. He was just sitting there, looking straight ahead. I was not able to see any detail, as the windows were steamed up. The side windows were most certainly misted up, and I believe that the back was as well, but I do not know about the front. I remember thinking that I would not be sitting in the car in that location if I was not able to get it started. I drove past and carried on with my journey. I had slowed down as I went past, which allowed me time to see the occupant. I believe that the time was now about 1.30 pm. When I first saw the red Metro I remember that the hazard lights were very faint and that it was at first difficult to make out. I don’t remember seeing any other lights on the Metro, but do know that it was very difficult to see at any great distance due to location and weather conditions.”

[15]The second is that of George Turner. He did not see the red Metro before the collision. According to him, the weather conditions were poor, with light rain. The visibility was fair to good, but the road surface was wet, with plenty of surface water. He saw the defendant’s Mercedes van ahead of him. He apparently did not see the defendant’s van overtake vehicles about to leave the A13 via the slip road and move into the offside lane, or the defendant’s manoeuvre back into the nearside lane. He simply saw the defendant’s van brake hard. It started to skid and “within about 30 yards or so there was a collision as the van hit something in the road”. Immediately prior to the impact, he noticed something red in colour in front of the defendant’s van.

[16]The third is that of Andrew Gillings. His account is similar to that of George Turner. He was driving at 60 to 65 miles an hour. On reflection, he thought a safe speed would have been 50 to 55 miles an hour in his company’s Vauxhall Combo courier van. He saw the defendant’s van and a blue car behind it in the nearside lane and was preparing to overtake him. The defendant’s van braked and started to skid, and, as he put it, “within a couple of seconds I saw a red car spin across the road in front of me and hit the central crash barrier”. He had not seen it before then.

[17]That concluded the defendant’s case on contributory negligence. One witness, John Preston, was called on behalf of the claimant, who stated that his witness statement made on 13th November 2002 is true. He also referred to his witness statement to the police, which he said was made on the day of the accident although it is dated 13th January 1999, and that accurately set out his recollection as follows:

“As I approached a section of road on the A13 known as the Five Bells roundabout, my attention was drawn to a large white van as it overtook me. I was driving at a speed of about 40 miles an hour, travelling behind another vehicle, a dark coloured car. It had been my intention to pull out to the outside lane in order to overtake the dark coloured car, but I was aware of the large white van as it approached and I waited for it to go past before I pulled out. I saw that this large van was driving without any lights on. When it went past, I pulled out behind and accelerated to a speed of about 50 to 60 miles an hour, and followed it at a constant distance of about four of its lengths – I estimate about 30 yards. We both drove past the dark coloured car, and about a hundred yards after that this large van pulled over to the left-hand lane. The left-hand lane was at this time clear, as was the outside lane, and I started to accelerate in order to overtake. Just as I started to do so, I saw a vehicle stationary in the left-hand lane, just past the roundabout system, which was now above our heads. We were, in other words, in the ‘deeping’ beneath the Five Bells roundabout. I saw the car was a red car with its hazard lights on. I do not remember seeing any other lights on on this car, but its hazard lights were clearly visible. I immediately took my foot off the accelerator and fell back again to a distance of about four car lengths from the large van, having first made a little ground on it. I expected the van to pull back out to the outside lane, as this would be reasonably expected in the circumstances. I didn’t start to brake at the time, as I had left enough room for the van to pull out. I estimate that I was now a distance of about a hundred yards behind the stationary vehicle. I carried on in the outside lane at a speed of about 50 miles an hour. I remained behind the large white van and saw that it carried on in the inside lane without altering course. It didn’t brake or indicate any intention. By now we were both close to the stationary vehicle, and had closed to a distance of about 50 yards. I saw no change of direction in the white van, and thought to myself that he was just going to run into the red car. I at that time accelerated hard to get past in order to avoid an accident. As I drove past the large white van, I saw that moments before impact it moved slightly to the right towards my van. I was now about level with the white van, and I estimate that it was only a matter of ten feet from the back of the stationary red car. As I drove past, I estimate that the large van was travelling at a speed of about 50 miles an hour at the point of impact. I narrowly missed being involved with this incident, as the red car spun out across the road. I had to swerve to the central reservation, and at this point my car was sprayed with petrol from the red car. I believe the white van had more than enough time to take action to avoid this accident by either braking or pulling out in front of me. I remember that there were no other cars or other vehicles in front of us, and that visibility was good. I believe that it would have been safe to travel at 70 miles an hour along that section of road, as traffic conditions were light.”

He concludes his witness statement:

“I cannot account for why it pulled over to the left-hand lane, as I had a good clear view of the stationary car when the large van pulled over.”

He concludes his witness statement:

[18]He was cross-examined:

“Question: You thought someone was to blame, and you were anxious to blame the defendant, Mr Stannard. Answer: No. I think Mr Stannard was at fault in the accident. I didn’t see the red car until the defendant pulled over. I immediately pulled back, thinking the white van would pull out into the offside lane, but he didn’t, so I accelerated. The white van never showed signs of braking or decreasing of speed.”

He was pressed and said:

“Maybe it braked in the last ten feet. [At a time when he would not have been able to see the brakelights.] When I dropped back, he was not braking. The defendant should not have pulled into the nearside lane. I did have a clear view up to the point of being ten feet before the impact as to whether the defendant was braking. He was proceeding on the same line at the same speed. He did have time to pull out into the offside lane in front of me.”

He was pressed and said:

[19]Mr Andrews QC then referred me to a large number of references in the trial bundle dealing principally with the claimant’s retrograde amnesia. The claimant’s retrograde amnesia extended to about two weeks, with post traumatic amnesia estimated to be of three months’ duration. The initial CT scan showed cerebral contusion and blood in the right ventricle, which indicated the severity of his brain injury. Another useful indicator to judge the severity of the injury was his Glasgow coma score of 3/15 at the time of his arrival at hospital. That is the lowest score consistent with continued life. Mr Andrews referred to those matters to make the submission that what the claimant said at the magistrates’ court should be viewed with a great deal of circumspection. It is, he submits, not reliable.

[20]That was all the evidence. Mr Andrews submits that the principal question is whether the claimant’s red Metro, with hazard warning lights on, presented a dangerous obstruction to other road users. It is common ground that that is the principal issue. As to the first allegation of contributory negligence, Mr Andrews submits that there is no evidence to show that this was other than a sudden loss of mechanical power by the claimant’s car. What the claimant said in the magistrates’ court is unreliable. Even if the claimant did have early warning signs of trouble, it was not unreasonable for the claimant to drive on to see if the fault righted itself.

[21]As to the second allegation of contributory negligence, it was plain that the defendant had insisted throughout that the red Metro was not showing hazard warning lights. Plainly it was, and the defendant now accepts that. As Mr Andrews put it, the defendant accepts that if those hazard warning lights were on, then the accident would not have happened. Thus, there is no causative potency in the red Metro being stationary on the carriageway, as Mr Andrews submits, because the defendant would have appreciated its presence as a stationary vehicle and would have taken prompt action to avoid it. The red Metro was not a dangerous obstruction or hazard on the highway, because it was there in daylight with its hazard warning lights on. The defendant had not established that the claimant had any opportunity to drive off the road. In any event, it would not have been reasonable to do so, having regard to the gravel drainage channel.

[22]As to the third allegation of contributory negligence, Mr Andrews submits that there is no reliable evidence apart from that of Lindsey Oliver, who saw the claimant in his red Metro as she went past at or about 60 miles an hour. It was not known how long after she passed the accident happened. Was it a matter of ten minutes or ten seconds? The claimant was entitled to an initial period of time in which reasonably to assess what he should do.

[23]As to the Highway Code, the only guidance offered for this non-motorway road is contained in paragraphs 149 and 150 in the 1993 version of the Highway Code which applied at the time. Paragraph 149 reads:

“If you have a breakdown, think first of other traffic. Get your vehicle off the road, if possible.”

Paragraph 150 reads:

“If your vehicle is causing an obstruction, warn other traffic by using your hazard warning lights.”

As Mr Andrews submits, the claimant acted reasonably in stopping his vehicle one foot from the nearside white line marking the nearside edge of the carriageway, and he had certainly used his hazard warning lights. As to the defendant’s reliance on the Highway Code as it applied to motorways, Mr Andrews submits that the advice there set out in paragraph 183 is not of much practical use, as there is no hard shoulder on the A13, and the Code refers to the driver remaining in his vehicle if he cannot get his vehicle onto the hard shoulder. Mr Andrews submits that the defendant’s driving was reckless. He was driving a loaded van at 50 to 60 miles an hour on a wet road, and somehow failed to appreciate that the red Metro was any kind of a hazard until it was too late. It would appear, he suggested, that Mr Preston had seen the red Metro before the defendant did. Once the claimant had put his hazard warning lights on, Mr Andrews submits that it could not properly be said that the claimant had failed to take ordinary care of himself. Paragraph 150 reads: As Mr Andrews submits, the claimant acted reasonably in stopping his vehicle one foot from the nearside white line marking the nearside edge of the carriageway, and he had certainly used his hazard warning lights. As to the defendant’s reliance on the Highway Code as it applied to motorways, Mr Andrews submits that the advice there set out in paragraph 183 is not of much practical use, as there is no hard shoulder on the A13, and the Code refers to the driver remaining in his vehicle if he cannot get his vehicle onto the hard shoulder. Mr Andrews submits that the defendant’s driving was reckless. He was driving a loaded van at 50 to 60 miles an hour on a wet road, and somehow failed to appreciate that the red Metro was any kind of a hazard until it was too late. It would appear, he suggested, that Mr Preston had seen the red Metro before the defendant did. Once the claimant had put his hazard warning lights on, Mr Andrews submits that it could not properly be said that the claimant had failed to take ordinary care of himself.

[24]He helpfully referred me to a number of authorities: Dymond v Pearce [1972] 1 AER 1142; Rouse v Squires [1973] 2 AER 903; Wright v Lodge [1993] 4 AER 299; Howells v Trefigin Oil and Trefigin Quarries Limited [1997] Court of Appeal, unreported, 2nd December 1997, reference 97/093/C; and Spurgeon v Ledger [2001] Court of Appeal, unreported, 11th October 2001, reference B3/2000/3601.

[25]In Howells Beldam LJ said at the fourth page of the transcript:

“The question was not whether Mr Rogers could have taken his vehicle off the road completely, or could have parked in a different position, the question…was whether, in the position in which it was parked it was a possible source of danger to other road users using the road in a way in which he, Mr Rogers, could reasonably expect them to use it. As was once said by a distinguished Judge, a road user is not bound to anticipate folly in all its forms, but he is bound to pay regard to carelessness by other road users where experience shows that such carelessness is common.”

That echoes what was said by Cairns LJ in Rouse at page 910 B-D:

“If a driver so negligently manages his vehicle as to cause it to obstruct the highway and constitute a danger to other road users, including those who are driving too fast or not keeping a proper lookout but not those who deliberately or recklessly drive into the obstruction, then the first driver’s negligence may be held to have contributed to the causation of an act, of which the immediate cause was the negligent driving of the vehicle, which, because of the presence of the obstruction, collides with it or with some other vehicle or some other person.”

That echoes what was said by Cairns LJ in Rouse at page 910 B-D:

[26]Mr Ticciati, on behalf of the defendant, relied strongly on what the claimant had said at the magistrates’ court and in his witness statement of 28th April 1999. Mr Ticciati submits that those matters should be read together with what Lindsey Oliver says in her witness statement. That, he submits, would lead to three powerful points.(1) Why did the claimant stop his car where he did? It presented a colossal danger.

(2) The claimant appreciated precisely where he had stopped, and was telephoning for help. (To whom, I may add, we do not know.)

(3) It was near suicidal for the claimant to be in his car, as he must have appreciated, and the context is that the claimant had had time to get out of the car, examine it, telephone for help and then get back into the car.

[27]Mr Ticciati submits that it was unreal to say that merely turning on the hazard warning lights was sufficient. The weather was wet and, as Mr Ticciati submits, the claimant must have appreciated that it may not have been easy to see his hazard warning lights. Mr Ticciati submits, forcefully, that the defendant did not drive recklessly. What he did, or failed to do, was the act or omission of a careless driver. As he put it, this was a forgivable or understandable piece of careless driving.

[28]As to the first allegation of contributory negligence, while he did not abandon it Mr Ticciati said it was a relatively light allegation, not at the forefront of his case. As to the second allegation of contributory negligence, Mr Ticciati submits that the red Metro could and should have been taken off the road at least in the sense of being driven right to the edge of the tarmac. It was not enough just to put on the hazard warning lights. As to the third allegation of contributory negligence, Mr Ticciati submits that it is not possible properly to say that this was not causative, and wholly unarguable to say that the claimant acted reasonably in sitting in a car protected, as it were, by flashing hazard warning lights.

[29]As I find, visibility was sufficiently good to enable the defendant to see the red Metro at least 200 to 250 yards away. I find that the red Metro’s hazard warning lights were on and had been on at least for some seconds before the defendant came on the scene. The defendant now accepts they were on. Both Miss Oliver and Mr Preston saw them, Miss Oliver seeing them in plenty of time to take avoiding action by reducing her speed somewhat and moving into the offside lane.

[30]As to the position of the red Metro in the road, the defendant’s evidence that its nearside was only one foot out from the white line marking the nearside edge of the nearside carriageway is powerful evidence, because it is in a real sense in the defendant’s interests to put the red Metro as far out from that nearside white line as possible. So it is evidence against the defendant’s interest, and I accept what he says on that matter. Miss Oliver, an independent witness, is somewhat critical of the red Metro’s position. She was, of course, not cross-examined. Mr Preston, another independent witness, as I find, although he was at one stage interviewed under caution, was cross-examined. He is not critical of the red Metro’s position in the road. There was nothing obscuring the defendant’s view of the red Metro or of its flashing hazard warning lights for a considerable distance. Those flashing hazard warning lights were clearly visible to Mr Preston, who saw them when he was a hundred yards or so away, they having been shielded by the defendant’s van before then, and Mr Preston was in the offside lane.

[31]What am I to make of what the claimant told the police and the magistrates’ court? It is said that it is not reliable because the claimant has and had retrograde amnesia for some two weeks. His police witness statement and his evidence in the magistrates’ court clearly show that the claimant at least then professed to have a recollection of parts of the events leading up to the accident. That has not been really explained and I do not consider that I can properly ignore it.

[32]Dealing first with his police witness statement and the breakdown, he says no more than that his car broke down and “I pulled it over to the left-hand side of the road.” We do not know whether the breakdown prevented him from pulling further over beyond the nearside white line onto the narrow strip of tarmac forming an unprotected verge. It does not seem to me right to make the assumption that the claimant truly chose the place to stop and voluntarily left the red Metro where he did one foot from the nearside white line. As to what happened after that, the claimant said he switched on his hazard warning lights, which is certainly correct, and looked under the bonnet, and then got back into the car to try and start it again. On the basis of that, I cannot properly find that the claimant acted other than reasonably. There is no room to find, for example, that he lingered unnecessarily in the car once it was clear that the car would not start and could not be moved. That is his witness statement.

[33]As to what was said in the magistrates’ court, we have Mr Peasgood’s notes. Clearly the claimant had some warning that there was a problem with his car, and hoped that the car would right itself. The problem became worse and he decided to pull over. Again, we do not know if the claimant voluntarily chose the precise place to stop, or whether he was effectively forced to stop by whatever was wrong with the car. Again, he put his hazard warning lights on; again he looked under the bonnet. There is the addition here of phoning (presumably for help) on his mobile phone. He then gets back into the car, as it was slightly raining. Nothing happened for a while. There is no mention here of getting back into the car in order to try and start the engine. We do not know whether that is an omission from Mr Peasgood’s notes, or from the claimant’s apparently patchy memory at least. There is no record of timing here, as to how long the car had been stationary or how long the claimant had been in the car after phoning before the collision took place.

[34]I therefore do not much derive much assistance from the claimant’s police witness statement, or what he said to the magistrates’ court.

[35]The claimant was not called to give evidence. If the numerous medical references are correct, and there is every reason to believe they are, then the claimant could only say now that he does not remember what happened.

[36]I am not prepared to find on this flimsy material either that the claimant voluntarily chose to park his red Metro in the position it was when the defendant ran into it, or that the claimant acted unreasonably in doing what he apparently did after his car had broken down. I am not assisted by Miss Oliver’s observation that some of the red Metro’s windows were steamed up, or that the driver did not appear to be attempting to start the car but was simply looking ahead. She had certainly reduced her speed somewhat, but she could only have had the most fleeting of glances. We do not know. The claimant may have been pausing between reasonable attempts to start the engine. I am satisfied that the defendant was at least 200 to 250 yards from the red Metro when he says he first saw it. He was then in the offside lane, travelling at between 50 and 60 miles an hour. He decided to return to the nearside lane to let vehicles overtake him, and did so, but, wholly unaccountably, failed to observe the presence of the red Metro or of its flashing hazard warning lights. He did not observe the red Metro again until he was but approximately 50 yards from it and a collision was inevitable. The red Metro and its flashing hazard warning lights were there to be seen. If the defendant had seen them, he would have remained in the offside lane and passed by safely, as at least one other driver did, i.e. Miss Oliver.

[37]There are four significant points, it seems to me, which need to be taken into account in assessing the extent of the defendant’s negligence in running into this stationary red Metro.(1) The red Metro’s hazard warning lights were flashing for all to see in daylight.

(2) The red Metro and its flashing hazard warning lights were visible from at least 200 to 250 yards away, and the red Metro, but not its flashing hazard warning lights, was seen by the defendant from at least that distance.

(3) The red Metro was stationary, positioned close to the nearside edge of the road, but one foot from it.

(4) Other road users saw the red Metro and its flashing hazard warning lights. There is no evidence that any of them were put in difficulties or suffered anything approaching a near miss.

[38]Whether or not it is right to characterise the defendant’s driving as reckless, I am clear in my mind that his driving was so bad that it was the height of folly for him to move from the empty and clear offside lane into the nearside lane – which was partially blocked by the stationary red Metro with its flashing hazard warning lights – and then driving on, unaccountably failing to see the red Metro until it was too late, a very severe collision then being inevitable as the defendant’s van was travelling at some 45 miles per hour or so on impact, despite very heavy braking, albeit on a wet road. I am persuaded by Mr Andrews that this was the kind of very bad driving which it was not reasonable for the claimant to have had in his contemplation. It was not, in my judgment, such carelessness by a road user which experience shows is common. Another way of putting it – as has been put in the authorities – is that the defendant was not, in my judgment, using the road in a way in which the claimant could reasonably expect any road user to use it.

[39]So I come to the principal issue. Did the red Metro with flashing hazard warning lights present a dangerous obstruction to other road users? I do not believe that it did in these particular circumstances, where it can be seen by other road users on the A13 travelling south, at least 200 to 250 yards away, and where the defendant had ample opportunity to see the red Metro with its flashing hazard warning lights and simply carry on driving as he was, in the offside lane.

[40]As to the three allegations of contributory negligence, I shall consider them in turn. As to the first, there is no substance in this. It was not unreasonable on the evidence, such as it is, for the claimant to have acted as he did and continue on the A13 hoping that the fault in the car, whatever it was, would right itself. As to the second, as I have found, the red Metro with its flashing hazard warning lights did not present a dangerous obstruction. I further find that it has not been established that the red Metro was in the position it was through the negligence of anyone. The car had broken down and ended up in that position. Even if the claimant did, the car being about to break down, choose to stop where he did (and I do not make that finding), I do not see that as unreasonable in all the circumstances. As to the third, this has not been established. We do not know that the claimant got into the car again for any purpose other than to try and start the engine, or how long he was there before the collision took place. I do not see that he acted unreasonably in getting into the car again to try and start the engine, or to assess the situation, if that is what he did. It would not be right, in my judgment, on the material before me, to find (and I do not) that the claimant simply got into the car again because it was raining.

[41]Accordingly, in accordance with his admission, I find the defendant guilty of negligence, but I reject the allegations of contributory negligence. __________

Houghton v Stannard [2003] EWHC 2666 (QB)

Cited in 2 later judgments