England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM KINGSTON-UPON-HULL COUNTY COURT
(JUDGE CRABTREE)

		Royal Courts of Justice Strand London WC2 Thursday, 11th October 2001

Thursday, 11th October 2001

1. LORD JUSTICE WARD: Lord Justice May will give the first judgment.
2. LORD JUSTICE MAY: This is an appeal on behalf of the defendant, Mr. Ledger, from a decision of his Honour Judge Crabtree, sitting at Kingston-Upon-Hull on 20th November last year in a road traffic accident case. Mr. Spurgeon, the claimant, was injured in an accident which is the subject of the claim. He was quite badly injured and his damages were agreed at £50,000 on full value. The judge held that the defendant's negligence had contributed to the accident, which was nevertheless, so he held, mainly the responsibility of the claimant himself. He apportioned responsibility, 80% to the claimant and 20% to the defendant, and accordingly gave judgment to the claimant for £10,000. This is the defendant's appeal against that decision. Mance L.J. gave permission to appeal, at the same time expressing some reluctance to do so since the issue was largely a question of fact.
3. The unfortunate accident occurred at almost exactly mid-day on 21st December 1996. The claimant was riding a moped along Dunswell Road, Cottingham, East Yorkshire when he collided with the bucket of the defendant's JCB mechanical excavator, which was stationary partly on and partly off the carriageway along which the claimant was travelling, and on his near side. The defendant was sitting in the cab of the JCB at the time with, I think, his nephew, having refreshment or a rest.
4. The main reason for the accident was that the sun was shining straight into the claimant's eyes. Being the winter solstice, as the judge observed, the sun was low in the sky and the claimant was travelling directly towards it. In these circumstances, his vision may have been further impeded by the visor of his crash helmet. The visor was not recovered, but it was itself quite elderly and it may have been scratched or otherwise not entirely transparent.
5. The claimant, who as I say was quite badly injured, was unable to remember much about the accident and unable to give much useful evidence. He did, however, say to a police officer soon after the accident words to the effect that he had been blinded by the sun. It is evident, however, that because of the sun he just failed to see the JCB excavator and drove straight into it. His moped was not capable of a speed greater than about 35 miles an hour. His evidence was that he was travelling at about 25 miles an hour, and the defendant thought that it was perhaps as little as 20 miles an hour. The judge reckoned that the claimant's speed may have been rather faster than 25 an hour, and his basis for thinking that was the extent of the claimant's injuries. I find that, for my part, a rather difficult finding; but I do not think that it is central to the issues in this appeal.
6. The reason that the defendant's JCB excavator was there was that there were some gas works going on in the grass verge. They had been going on for some time. They did not themselves extend any significant distance into the carriageway. Photographs show that the works were guarded on the roadside by a post and rails of the kind which are commonly found guarding road works, the rails being checkered white and red. The judge found that there were also a number of warning signs for the excavation works themselves. There were photographs and a police officer drew a plan from which the judge concluded that the defendant's JCB was approximately two thirds on the verge and one third on the carriageway. The width of the JCB was 7'4" or something over 2 metres. The width of the total carriageway, both sides, was about 6 metres; thus the JCB protruded onto the part of the carriageway on which the claimant was travelling by rather less than a metre, significantly less than the full width of an average small motor car.
7. Police officers who attended the accident and saw how the JCB was parked in effect expressed the view that the defendant was not responsible for the accident. There was evidence about cones which was to some extent in dispute; but the judge appears to have concluded that a number of cones were available. The defendant and his nephew gave evidence to the effect that they had placed cones in front of the JCB and therefore in the direction from which the claimant was travelling. The judge did not believe this evidence and indeed concluded that in this respect the defendant told lies. He further held that the absence of cones was a contravention of a Code of Practice entitled "Safety at Street Works and Road Works", of which he found that the defendant was aware. But the judge did not hold that the mere fact that the code had not been observed by itself provided a cause of action which had on the contrary to be in negligence. His reason for concluding that the defendant had lied was that, being aware of the code and believing that he might be held to have been at fault, the defendant elaborated and embroidered his evidence about cones at progressive stages after the accident and that this was not credible.
8. Having held that the explanation for the lies was that the defendant himself thought that he might be held responsible for the accident, the judge said this (page 10 of his judgment):

"Does it make the defendant liable? Because the two are not really entirely the same thing. The police officer who came, Mr. Waudby, did not think there was anything wrong in the way he had parked the JCB. Whether the police officer was there at the time when the sun was at its worst is a different matter. May not have been. By the time the photographs are taken the sun clearly had ceased to be a serious problem anyway. One of them is taken right into the sun so that within 20 minutes or half an house at least the sun must have ceased to be a problem.

"In the ordinary way one surely is entitled to park a car, van, even a JCB, without being liable if some careless motor cyclist runs into you and why should it be different in this case? This particular JCB probably had a flashing yellow light on top of it, though I am by no means certain that that is so. It will have had the flashing light on when the drove up to this place but I suspect that when he stopped for lunch the defendant may well have switched it off. It is an irritation having flashing lights flying all around you. I do not know. On the other hand it is entirely possible that it did have a flashing light on it. The police officer says it was flashing when he arrived but then that is after the accident.

"At first blush, nobody would be thinking in terms of liability for negligence. Yet, it is absolutely clear that the defendant himself must have thought within a short time, within 24 hours, that he was going to get the blame for not laying out a string of cones to protect the part of the JCB that was sticking out into the road, and I think that he knew, not only that there had been a technical breach of the Code of Practice, but, I think the defendant himself realised that in this particular instance it mattered because I think he appreciated that the sun being in the position that it was and where he parked that JCB, and his bucket sticking far enough out to catch any unwary motor cyclist, I think he realised that this was perhaps one of the rare occasions when he really should have obeyed the Code of Practice. It is the only explanation I can think of for why the defendant felt so guilty as to start telling lies about it.

"I think it is beyond argument that there was technically a breach of the Code of Practice. I am certainly not saying that a breach of the Code by itself necessarily gives rise to a cause of action. There may be many circumstance in which I would not dream of finding negligence merely because there had been a breach of this particular Code."

9. Having referred to a case called Coot v Stone [1997] 1 W.L.R. 279, the judge proceeded as follows:

"In the end, it all does come down to negligence. Of course breach of a Code like this is simply one of the factors that has to be taken into account, like the Highway Code in road traffic cases.

"The defendant was the only person responsible for this JCB. He was in charge and as I say he appears to have suffered from enough of a guilty conscience to have invented cones where they should have been according to the Code.

"I think in the end, looking at all this in the round, when one bears in mind the particular direction of the sun at the time, I think he was right to have a guilty conscience. At first glance, of course, Coot v Stone is very similar. There was a car parked on a clearway with such bright sun dazzling the eyes of following traffic that somebody ran into him but in that case the car had stopped because of an emergency, of a kind, a child was going to be sick. It was not stopped there out of choice and a car does not carry round cones or anything of that kind whereas in the present case the defendant did have a choice. He did not have to park on the road at all. He could have gone on to the verge altogether, seeing the sun, and he did have, or immediately available there were, cones and he could have put them out and I am satisfied in the end that where a JCB digger like this is left sticking out onto the road far enough to catch an unwary motor cyclist on a day when there is brilliant sunshine low down behind it facing the on-coming traffic, I think then it is negligent to disobey the Code of Practice by not putting out the cones in the front. It is easy to do. The cones were there. Been the work of one minute to put them out.

"So I have in the end come to the conclusion that at first I had never thought to be possible reading the papers in this case but in the end I am persuaded that there is primary negligence on the defendant. It is common ground of course that there is a very high degree of contributory negligence. Even if there had been cones set out as there should have been this claimant probably would have come off his motor bike any way. He would have ridden into one of the cones. But if that had happened I would not have expected such shocking injuries".

10. The road along which the claimant was travelling has a gentle left-hand curve as he approached the point where the JCB was parked. An engineer, Mr. Bristow, carried out measurements and drew a plan. He also parked his own car in approximately the position of the JCB and took some photographs. In addition, the court has seen a short video of a car driving towards and past the place where the JCB was and where Mr. Bristow's car was parked at the time of the video.
11. A critical fact which becomes plain from this material is that, although there was a bit of a bend, the claimant had something around 150 metres of travel in which he was fully able to see the JCB. Mr. Bristow measured the distance from the apex of the bend to the northern side of a house which was closer to the bend than the JCB was parked as 121 metres. He expressed the view that this distance was so great as render the bend irrelevant when considering the circumstances of the accident. The view from further back across the bend was also clear and his parked car was clearly visible from a distance of 150 metres. So the JCB must have been fully visible to the claimant for a long time. There was ample room for the claimant to drive past, avoiding the JCB but remaining on his correct side of the road, and the unfortunate plain fact is that he just drove straight into it.
12. The appellant's essential case is that there was no proper basis for any finding against the defendant of causative negligence. The JCB was plainly visible from a long way off. There were three warning signs for the gas works and a blue and white directional arrow. These in practice served to warn also of the JCB. The JCB itself may well have had a flashing yellow light, although the judge's finding in this respect is tentative. There was ample room for the claimant on his moped to drive past the JCB on its own side of the road. If the claimant was troubled by sunlight, it was his obligation to take appropriate steps so that he might proceed safely. Sunlight or no, there was what, in the context, was a long time - some 10 seconds - in which the claimant saw or should have seen the JCB. The JCB was not parked in an unsafe place, and the absence of cones was neither negligent nor causative. The JCB might just as well have been a parked car, such as is in fact to be seen parked wholly in the road in the back of some of the photographs taken at the time. If it had been an ordinary parked car, no one would have suggested that there was causative negligence. The subjective fact that the defendant may have had some guilty conscience about cones does not alter the objective fact that there was no want of care on his part.
13. Mr. Elgot questions whether there was any proper evidence to conclude that there was more than one cone available in the first place. There was no requirement for the defendant to put out cones which in any event he submits made no difference to the accident.
14. On behalf of the claimant/respondent, Mr. Levene accepts that negligence here cannot depend on the way in which the JCB was parked. He relies on the defendant's failure to put out cones. He submits that the judge was entitled to have regard to the Code of Practice to conclude that the defendant was in breach of duty in not putting out cones and that this was causative. He has taken us to passages in the code. He says that the judge's finding that the defendant's failure to follow the code was negligent cannot be criticised and that the only questions are causation and contributory negligence. He submits that the claimant's case is that the cones, like warning signs, were there to alert motorists to two dangers, the excavation at the side of the road and the large stationary JCB, partly on the road and partly off it. The fact that they were visible without warnings goes to contributory negligence, he submits, and not the defendant's primary liability.
15. The claimant, through Mr. Levene, refers to the lay-out of cones recommended by the code, to which I shall refer in a moment. It may be inferred, he submits, that the idea of staggered row of cones leading from the curb to the edge of the JCB was to lead a motorist gradually from the near side to the off side of his lane and he submits this was and should have been a further accumulation of little bits of warning to assist an on-coming motorist. He submits that the judge was right to hold that, though the cones would not usually be necessary, they were necessary on this occasion because the sun was bright, low in the sky and dead ahead of the claimant. If the judge was, as he submits, right to hold that the road should have been coned off for the safety of road users, then on the facts as he found them he was entitled to conclude that their absence contributed to the accident. The defendant is therefore liable, at least to some extent.
16. Reference to the code itself appears to indicate that if cones had been placed in a taper, as advised for a situation of this kind, the length of the row of cones would have been as little as 25 metres, and that that, on the facts, would have been appropriate. Twenty-five metres is not insignificant, of course, but it is not a very long distance.
17. I am conscious that the relevant finding of the judge here may be categorised as a finding of fact, but I have concluded that the judge's finding that the defendant was causatively negligent in this case was wrong and cannot stand. I reach this conclusion essentially for the reasons advanced by Mr. Elgot, which I express briefly in my own words as follows.
18. First, the JCB was plainly visible to advancing motorists from at least 150 metres back. The claimant had abundant opportunity to see it and, since there was a bend, he cannot have been blinded by the sun for the whole distance of 150 metres. At the speed at which he was travelling, even if it were as fast as the judge found, he had something in the order of 10 seconds to see and avoid the JCB, and thus a period of that order to take the necessary steps to deal safely with the sun. On this part of the road there were warning signs, including a road narrows sign and a large white directional arrow on a blue background. In these circumstances, the claimant in my judgment ought to have seen the JCB and avoided it, and any common-sense assessment of this case could not regard the way in which the JCB was parked as in any way responsible for the accident.
19. Second, there were warning signs for the works, and the JCB probably had its yellow warning light on. Given that the claimant cannot in fact have seen the JCB when he should have done, it cannot have made any difference if four or five cones had been placed in front of it for a distance of 25 metres or so. Given that there were so many warnings relevant to this entirely visible JCB, the inevitable inference has to be that he would not have seen the cones either.
20. Third, for the purpose of the claim and its facts, there is in my view no material distinction between this parked JCB and any ordinary parked car. The fact that the defendant was there in connection with gas works is not material. A car parked in this position on this day, partly on and partly off the road in the way in which this JCB was, would not have been held to be negligently parked. Nor would the way in which it was parked have been held to have been causative of this unfortunate accident, nor would anyone suggest that it should have been coned.
21. I do not consider that the possibility of dazzling sunlight for a short particular time would have made any difference to this assessment. It is, after all, the duty of drivers to take care to deal with weather conditions which may affect their safe driving, and we all know that weather conditions may change quite quickly.
22. Finally, I do not think that a finding that the defendant had a feeling of guilt which caused him to lie about the cones can alter the conclusions to be reached from the objective facts.
23. For these reasons, I would allow this appeal.
24. LORD JUSTICE WARD: I agree.
25. LORD JUSTICE POTTER: I also agree.
ORDER: Appeal allowed; respondent to pay appellant's costs in the appeal assessed in the sum agreed; detailed assessment in the court below of costs below in favour of the appellant. (ORDER NOT PART OF APPROVED JUDGMENT)