Woodham v Turner (t/a Turners of Great Barton) [2011] EWHC 1588 (QB)

[2011] EWHC 1588 (QB)Case No HQ10XO2853
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21/06/2011
Before
MR JUSTICE KENNETH PARKER
Between
MR BEN WOODHAMClaimantJ M TURNER trading as TURNERS OF GREAT BARTONDefendant
David Melville QC (instructed by Kester Cunningham John Solicitors) for ClaimantMr Shaun Ferris (instructed by Herzog & Associates) for DefendantHearing Hearing dates: 8 and 9 June 2011
Judgment

Introduction

[1]In this action the Claimant, Mr Ben Woodham, claims damages caused by the alleged negligence of the Defendant, JM Turner trading as Turners of Great Barton. The claim arises from a road accident. I tried the issue of liability as a preliminary issue and this is my judgment on that matter.

Outline of the Relevant Facts

[2]At about 4.40pm on Monday, 8 October 2007 Miss Sarah Turner (now Mrs McCarter), a coach driver with Turners of Great Barton, drove a 24 seat Mercedes Vario coach south along School Road in the village of Great Barton, near Bury St Edmonds, Suffolk. School Road joins the single carriageway A143 road in Great Barton at a T-junction almost directly opposite a T-junction with East Barton Road. The A143 runs approximately northeast to southwest.[3]At about the same time Mr Woodham rode a Derbi GPR50 motorcycle northeast along the A143 road, along the offside (the right hand side as viewed from the driving position) of a queue of stationary or slow-moving traffic in the northeast bound lane. Miss Turner started to turn her coach right from School Road onto the A143 road through a gap in the traffic in the northeast bound lane in front of a large Claas tractor and trailer. The motorcycle ran into and struck the front offside corner of the coach, as a result of which Mr Woodham sustained serious injuries.

The Hearing before the Court

[4]Mr Woodham has no recollection of the accident and was not called to give evidence. A friend of the Claimant, Mr Jake Gladwish, who was riding his motor scooter behind the Claimant, gave evidence on behalf of the Claimant. For the Defendant, Miss Turner, the driver of the Mercedes school bus, and Mr Hatton, the driver of the Claas tractor, gave evidence. The Claimant also served witness statements from PC White and PC Cribb. PC White took photographs of the scene of the accident whilst PC Cribb took measurements at the scene and produced other raw data used by the experts. Both sides obtained and served reports from experts in accident reconstruction: Dr Horsfall for the Claimant; and Mr Mottram for the Defendant. They also prepared a joint statement.

More Detailed Analysis of the Collision

[5]Miss Turner’s visibility of the motorcycle and Mr Woodham’s visibility of the Mercedes Benz mini coach would have been restricted severely by the stationary tractor and trailer. The first part of the coach visible to Mr Woodham would have been its front nearside corner because of the angle at which it entered the major road. Therefore Mr Woodham would have been able to see the front of the coach before Miss Turner would have been able to see the motorcycle. The sightlines available to Mr Woodham and Miss Turner would have depended on the positions of their respective vehicles relative to the stationary tractor and trailer. Both drivers would have had a sightline to the other’s vehicle over the top of the tractor’s offside front wheel and mudguard but all other parts of the tractor would have blocked their views. Sightlines from a range of positions were shown in figures produced in the reports of the respective experts.[6]The impact was to the coach’s front offside wing, slightly forward of the front offside wheel. Mr Woodham’s head probably struck the windscreen close to the base of the offside A pillar. The small apparent lateral offset between the impact from the motorcycle and the impact from Mr Woodham’s head was consistent with the coach moving forward at the moment of impact. It is likely that the coach, at impact with the motorcycle, was close to the road’s centre line markings, as indicated by the final position of the motorcycle’s front wheel. There was no positive physical evidence of the motorcycle’s precise position at the moment of impact. The coach moved forward from the give way line by approximately six metres to its position at impact. It continued to move forward after the collision, before it came to rest, by between about 0.5 – 1 metre between impact and coming to rest.[7]Miss Turner gave evidence, which I accept, that she first became aware of the presence of the motorcycle when it struck the coach. On the basis of that evidence the coach would have continued to move during her perception response time following the impact and over the distance needed for it to stop under emergency braking (between about 0.5-1 metre).[8]The speed of the coach must have been slow otherwise it could not possibly have stopped in less than 1 metre beyond the likely position at impact. If the coach stopped 1 metre after the collision point its theoretical maximum speed at impact was about 2 metres per second, that is 4.5miles per hour. The experts agreed that an estimate of approximately 1.5 metres per second (3.5 miles per hour) for the speed of the coach was realistic for the purposes of analysis.[9]There was no physical evidence of whether the coach moved from the give way line to the point of impact in a single movement without stopping or if the coach moved forward in stages with pauses between successive movements. However, it would have been in motion for not less than about 0.5-1 second by the time the collision occurred.[10]According to the joint expert report the motorcycle would probably have been a short distance into the southwest bound lane as it overtook the stationary tractor and trailer. Its apparent position at impact suggested that Mr Woodham probably steered a little to the left just before the collision occurred. The experts agreed that the motorcycle’s speed at impact with the coach was probably around 20 miles per hour based upon the damage sustained by the motorcycle and by the coach. In his report, Mr Mottram performed calculations using a speed range of between about 15-25 miles per hour whilst Dr Horsfall considered the damage to be consistent with an impact of about 20-25 miles per hour but did perform calculations for a wider speed range.[11]There was no physical evidence that the motorcycle braked before impact. The experts could not rule out the possibility that there was a small reduction in speed by braking before the collision occurred although such braking would only have had minimal effect on the outcome of their analysis of the accident.[12]The experts made calculations of the maximum speed at which the motorcycle could have been stopped before the collision happened. On all the evidence it is clear that the coach was moving slowly (this is also consistent with the physical evidence). That would indicate a maximum speed of about 15 miles per hour or less to enable the motorcycle to have stopped before the collision. In essence the slower the coach travelled, the more time would have been available for Mr Woodham to see its front nearside quarter emerging beyond the tractor so the higher the speed from which he would have been able to stop the motorcycle before the collision occurred. Both experts used the same range of likely perception response times, applicable both to Miss Turner and Mr Woodham.

Issue 1: Was the Defendant in breach of its Duty of Care towards the Claimant?

[13]The Defendant submitted that Miss Turner was not to blame for the accident and that the fault lay wholly with the Claimant. The Defendant submitted that Miss Turner was acting appropriately in moving forward very slowly to get a better view to her right before attempting to turn right onto the main road. She was not pulling out blind but rather tried to make sure that it was safe to pull out. To wait until the tractor moved off made no sense and at that stage the traffic would move forward until the traffic lights turned green at which point the traffic would stop and the same problem would recur.[14]To suggest that Miss Turner should have turned left and then sought to do a U-turn or similar at some other part of the road was obviously unrealistic. A right turn, it was argued, is a far safer and easier manoeuvre than a U-turn on a busy A road. The suggestion that Miss Turner should have heard, and therefore avoided, the Claimant’s motorcycle was also unrealistic. There was the noise of the tractor and other relatively heavy traffic to contend with.[15]There was no reason, it was also contended, to expect a motorcycle to be overtaking the stationary traffic at speed, given the presence of the Pelican crossing, the proximity of the junction and the large tractor and trailer in the road. In any event the accident had occurred as Miss Turner was edging out to get a better view to her right. She was not ignoring the possibility of traffic coming from her right. It was also unrealistic to suggest that Miss Turner should have sounded her horn as she moved forward. Nor was it realistic to seek to criticise Miss Turner for not opening her window before she attempted to emerge.[16]Mr Shaun Ferris, who appeared on behalf of the Defendant, relied in particular upon the official Driving Standards Agency Guide to Driving Buses and Coaches. That Guide is intended for the drivers of Public Service Vehicles. At page 161 of the relevant edition of the Guide is the following:
“Observations at Junctions …. …. If you still cannot see any oncoming traffic, you will have to ease forward until you can see properly without coming too far into the path of approaching traffic …”
[17]Mr Ferris contended, therefore, that according to the best guidance Miss Turner was not in breach of any duty of care towards oncoming motorcyclists if she advanced, as she did, at a very slow speed on to the A143, even if she could not be entirely confident that the front part of her coach would not cross the path of a motorcyclist (overtaking the tractor on the same side of the A143 as the tractor, or just across the other side of the road) that, ex hypothesi, she was unable to see because of the obstructing tractor. I reject that submission, for it would amount to a licence to coach drivers to move forward blindly to a point where there was a significant risk of collision with oncoming, overtaking motorcyclists, however slowly the coach driver might be advancing through the putative gap in the traffic.[18]Furthermore, the interpretation put forward by Mr Ferris is not consistent with other guidance. The official DSA Guide to Driving at page 154 states under “Bends and Junctions”: “When to go You have to decide when to wait and when it’s safe to go. That decision depends largely on your zone of vision. Your zone of vision is what you can see from your vehicle. It is determined by• Buildings and hedges• Bends in the road or contours in the land• Moving and parked vehicles• Available light and the weather. As you approach a junction, your zone of vision on to the other road usually improves. The last few feet are critical. You can only decide whether to wait or go on when you have put yourself in a position where you can see clearly. Sometimes parked vehicles interfere with your zone of vision so that you have to inch carefully forward to see more. If another vehicle or a pedestrian is not in your zone of vision, you’re not usually in theirs. Looking means that you need to assess the situation, decide whether it’s safe and act accordingly. Remember An approaching vehicle, particularly a bus or lorry, can easily mask another moving vehicle which may be overtaking.”• Buildings and hedges• Bends in the road or contours in the land• Moving and parked vehicles• Available light and the weather.

Remember

[19]The Bus & Coach Driving Manual, referred to above, at page 161 concludes by saying:
“Never find yourself having to say, “Sorry, but I didn’t see you coming!””
At page 146 the section on “Observations at junctions” concludes with a prominent red box stating:
“REMEMBER, if you don’t know, don’t go.”
This specific guidance is in line with the Highway Code, where the relevant paragraphs strongly indicate that an emerging vehicle should not move beyond the point where the driver can be confident that there will be no collision with an oncoming motorcyclist (see Rules 170 and 211). If the driver cannot be so confident, the driver must simply wait, and should not continue forward, because there is then a real and foreseeable risk of collision with an oncoming motorcyclist that the driver has not seen and ought to have seen.[20]Unfortunately, that was the dilemma facing Miss Turner. She advanced forward, cautiously and looking to left and right, but the tractor, as she knew, was large and obscured her view to the right. The size and position of the tractor, and the configuration of her vehicle (with a short bonnet ahead of the driving position), made it likely that if she continued to advance through the gap, even very slowly, she would be advancing blindly in the path of an overtaking motorcyclist. A collision would not depend upon the speed of such oncoming motorcyclist but simply upon the fortuitous position of the vehicles in relation to each other. Therefore, a collision was reasonably foreseeable even if the motorcyclist was overtaking at a very low speed, and the damage and injury would then depend upon all the circumstances.[21]In my judgment, this does not amount to a counsel of perfection. The situation is a relatively common one, and drivers know, or ought to know, that emerging blindly, even at a very low speed, poses a significant risk to a motorcyclist who may be overtaking stationary or slow moving traffic, even where the motorcyclist is progressing at a low speed.[22]Furthermore, in this case Miss Turner had obvious alternatives that would have eliminated, or substantially reduced, the risk of collision. She could simply have waited, given the nature and size of the vehicle (the tractor) that was potentially blocking her view to the right. Mr Ferris argued that, after the lights had changed and the traffic was again held up in the queue, the situation would simply have repeated itself. I do not accept that. The situation might have been repeated, but there was a reasonable prospect that at the next change of lights a gap would be left, but on that occasion a smaller vehicle than the tractor might well have been positioned at the gap, allowing exit to be effected with much greater security and safety.[23]Even more importantly, Miss Turner advanced into the A143 at an angle to the oncoming traffic, thus making it significantly more difficult for her to have a good sight to her right. School Road curved to the left at the junction with the A143, and if a driver approaching the junction followed the curve it would make the right turn on to the A143 somewhat more difficult. However, in my view, it was considerably safer for a driver to follow the curve on School Road and to arrive at the junction more or less perpendicular, or at an angle of 90 degrees, to the A143, even if the right turn was then somewhat more difficult. If Miss Turner had done so, she would then have been able to advance more safely into the gap and would (given the turning circle of the coach) have been able to execute the right turn without substantial problems. The expert evidence showed dramatically that, if Miss Turner had advanced at right angles to the A143, at least 1.5 seconds and possibly more, depending on the Claimant’s position in the road, before the actual collision in this case she would have had a view of Mr Woodham and, most importantly, he would have had a view of the coach and, given his speed, would have had a real opportunity of braking to avoid collision. There was nothing negligent as such in Miss Turner not being placed at the T junction at a right angle to the A143. But once she was in that position, it was, in my view, reasonably foreseeable that if she then advanced through the gap on to the A143, she would have a significantly inferior view to the right, given the nature and size of the tractor, and that progress beyond a certain point would substantially increase the risk of collision. Not being perpendicular to the A143 meant, therefore, that, in the circumstances confronting her, and with the substantially heightened risks caused by her position, the only careful course was to wait until a more favourable opportunity for exit presented itself.[24]Mr Ferris relied on Farley v Buckley [2007] EWCA Civ 403. But in that case the judge was entitled to find that the driver had not been negligent, only on the basis that the reckless conduct of the motorcyclist was not reasonably foreseeable.[25]It seems to me that Mr Ferris was on much stronger ground when he submitted that Mr Woodham did not exercise reasonable care for his own safety and that such failure was a substantial cause of the collision. As I have recounted, the evidence was that Mr Woodham had slowed down at the Pelican crossing but then began to pick up speed as he approached, and then overtook, the stationary tractor. His final speed at collision was about 20mph (see paragraph 10 above).[26]The Highway Code, Rules for Motorcyclists (83-88) states (at Rule 88):
“Manoeuvring …. When in traffic queues look out for pedestrians crossing between vehicles and vehicles emerging from junctions or changing lanes. Position yourself so that divers in front can see you in their mirrors. Additionally, when filtering in slow-moving traffic, take care and keep your speed low.”
(emphasis added)[27]The Highway Code on Overtaking (162-169) states (at Rule 167):
“DO NOT overtake where you might come into conflict with other road users. For example • Approaching or at a road junction on either side of the road • … • Where traffic is queuing at junctions or road works.” • Approaching or at a road junction on either side of the road • … • Where traffic is queuing at junctions or road works.”
[28]On the day in question Mr Woodham knew that the traffic was slow moving or at times stationary on the relevant part of the A143. He also knew, or ought to have known, that the tractor had left a gap at the junction with School Road, and that there was a real possibility that a vehicle could emerge through the gap into his path. His friend, Mr Jake Gladwish, was also familiar with this stretch of the road and, in particular, was aware that there was ahead of him the junction with School Road. He was alert to the fact that the tractor had allowed a gap at the junction and that a vehicle could emerge through the gap. He said in evidence that he believed that the tractor had specifically allowed the gap for the purpose and that he was, therefore, expecting that a vehicle might emerge. That last observation might have been made with the benefit of hindsight, but the fact remains that Mr Gladwish decided, for his own safety, to wait behind the tractor and not to overtake it at the junction, and so expose himself to a foreseeable risk of collision with an emerging vehicle.[29]Mr Woodham did not wait behind the tractor. He did not overtake it at a very low speed which would have given him the opportunity, if a vehicle did emerge, of taking evasive action. He overtook at a speed – of about 20mph – that very substantially, and foreseeably, increased the risk of collision and of serious injury, if a vehicle did emerge. As events unfolded, a speed of 15mph or less would have given him a real chance of taking effective action to avoid the consequential collision.[30]Again this is not a counsel of perfection. The particular hazard demonstrated by this case is a common one. As emphasised by the Highway Code, motorcyclists must exercise care, which includes reducing speed very substantially or even desisting from overtaking, in overtaking stationary or slow moving traffic at junctions, because the risk that a vehicle might emerge, even at a creeping slow speed, is obvious and readily foreseeable.

Issue 3: What is the correct division of responsibility?

[31]It seems to me that Miss Turner bears the greater share of responsibility. She was emerging from a minor to a major road, where she was obliged to give way to traffic moving from both directions on that road. She emerged from School Road at an angle that significantly reduced her ability to see traffic on the far side of the obstructing tractor, and she advanced beyond her sight line, creating a real risk of collision with an oncoming and overtaking motorcyclist, however slowly such motorcyclist might have been travelling. She had the obvious alternatives of approaching the A143 closer to the perpendicular or of waiting for a more favourable opportunity to exit from School Road. I acknowledge that she was emerging very slowing and was looking, as best she could, to right and left. But in the circumstances that was not sufficient.[32]On the other hand, Mr Woodham’s lack of due heed for his own safety made him substantially responsible for the collision. He was not following the strictures of the Highway Code, and the risk of a vehicle emerging, even at very low speed, from School Road was obvious and foreseeable to any careful motorcyclist.[33]Weighing these factors, I have concluded that Miss Turner should bear 70 per cent liability for the collision, and that Mr Woodham contributed to his own injuries to the extent of 30 per cent.