England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MR JUSTICE BELL

		Royal Courts of Justice Strand, London, WC2A 2LL Friday 9th February 2001

SIR ANTHONY EVANS:

Summary of facts found by the Judge

1. The defendant Mr Maguire drove his van and trailer eastwards along the dual carriageway and turned into a break in the central reservation. He stopped there to wait for an opportunity to complete safely a U-turn into the westbound carriageway.
2. He then drove the van and trailer into the nearside lane of the westbound carriageway and stopped by the nearside kerb about 50m (165ft) further on. The nearside of the trailer was 15cm (6 in.) from the kerb, so that effectively it blocked the cycle lane (1.22m/4ft wide) and took up about 1.2m (3ft 10 in.) of the nearside traffic lane. This left about 2.2/2.25m (7ft 3 in.) of that lane free for traffic, as well as the offside lane.
3. Mr Maguire saw the claimant riding her bicycle westwards along the cycle lane, both when he was waiting in the central reservation and when he got out of his van. On the first occasion, she was "not more than 383.5m away from him", and on the second "she was still some distance away".
4. The claimant did not see or notice the parked trailer until it appeared in her 5 to 10 yard, head down, riding vision. She did not swerve, she hit it head on.
5. The cycle lane was marked as such, though not officially promulgated, but Mr Maguire "had not registered the fact that cyclists regularly used the road, and in particular the westbound carriageway, and what he knew (for the last week, anyway) was a cycle lane".
6. As to the weather and traffic conditions -

(1) the sky was overcast and it was raining at the time of the accident (about 7.45 a.m on 17 May 1995). P.S. Gabbitas said that it was raining quite hard but there was good visibility for a rainy May day, and

(2) "Both lanes of the westbound carriageway bore heavy traffic over the morning period when the accident occurred. Traffic in the inner lane regularly travelled in the region of 50 m.p.h. and in the outer lane in the region of 60 to 70 m.p.h. The road was well used by cyclists ..........But the traffic appears to have been spread enough to flow freely. No one spoke of it piling up, even after the accident."

Negligence

7. The Judge asked himself this question, which he described as "agreed" -

"......whether leaving the van and trailer, in the position in which they were parked, would present a possible source of danger to other road users using the road in a way which he, Mr Maguire, could reasonably expect them to use it, bearing in mind that 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. See Howells v. Trefigin Oils C.A. unreported, 2 December 1997, per Beldam L.J. at page 6C to G of the transcript."

8. His answer was as follows -

"But however I look at the situation as I found it to have been, I can not judge that the van and trailer where Mr Maguire left them presented a possible source of danger to other road users using the road in a way which Mr Maguire could reasonably expect them to use it..........

For all these reasons I find that Mr Maguire ....was not negligent. In my judgment Mr Maguire discharged his duty of care to other road users including [the claimant], by ensuring that his van and trailer were parked close to the nearside kerb on a straight, wide road in reasonable visibility and marked by beacon, hazard lights and side lights."

9. He added –

"In my judgment the sole effective cause of the accident was [the claimant's] own failure to take due care for her own safety, in riding head down at 12 to 15 m.p.h. with visibility of only 5 to 10 yards, and without noticing the Defendant's van or trailer, and without looking up for the last 185m or thereabouts before she struck the trailer."

10. In the course of his reasoning, the Judge found that "no one could reasonably have foreseen that [the claimant] or any cyclist riding down this straight road .......towards a van and trailer .......... for about a minute after it had been parked, would continue straight into it". Here, he was considering the foreseeability of the accident which in fact occurred, rather than the possibility that a cyclist would be exposed to a risk of injury, but he continued –

"That is not necessarily the end of the matter .... because ......if the parked van and trailer presented a reasonably foreseeable source of danger for traffic, for instance by creating a bottleneck of a kind which might foreseeably present a risk, then the Defendants would be responsible for injury in fact caused by the parked van and trailer, albeit in an unpredictable way. See Hughes v. Lord Advocate [1963] AC 837 per Lord Reid at page 845.

But in my judgment this van and trailer, parked on the nearside of a one-way carriageway with a total width of 8.39 m or 27ft 6ins and extending 2.4 m or 7ft 10ins into that carriageway, did not present a reasonably foreseeable, obstructive source of danger to anyone, bearing in mind the flat, straight nature of the approach, the visibility at the time, and the ways in which the van and trailer were lit and marked, even allowing for some commonplace carelessness of other road users. Placed where they were, lit as they were ........... oncoming traffic was given ample time to negotiate them safely".

11. In the first of these two paragraphs, the Judge appears to have been considering other vehicular traffic using the west-bound carriageway, rather than cyclists using the cycleway. He makes no express reference either to cyclists, nor to the fact that the cycleway was completely blocked. The second paragraph likewise makes no reference to them.

Comment

12. The central issue on this appeal is whether the claimant can successfully challenge the finding that the van and trailer, parked and illuminated as they were, "did not present a reasonably foreseeable, obstructive source of danger to anyone" in the circumstances and road and weather conditions as they were at the time.
13. I find this a surprising conclusion. On the findings of primary fact, this was a dual carriageway road carrying heavy traffic at motorway or near-motorway speeds. It was raining heavily or "quite heavily" with the inevitable consequence that cars and heavier goods traffic were creating clouds of spray. The Judge does not mention this factor, but there is a graphic reference to it in the claimant's witness statement, to which we were referred in another context.
14. Moreover, the fact that the road was a designated clearway meant that drivers would have a reduced expectation of finding that the nearside lane was blocked or partially blocked by a parked vehicle. Although the general visibility was good, approaching drivers' visibility of the parked vehicle, however well lit it was, must have been impaired by the rain and, in particular, by the amount of spray from other vehicles, depending on the amount of traffic from time to time. Allowing for carelessness or possible carelessness by other drivers, and perhaps even without doing so, it seems to me that the possibility that an accident of some kind might occur and with it the potential for injury to other road users (if that has to be separately established, see Page v. Smith [1996] A.C.115) was reasonably foreseeable when the van and trailer were parked.
15. If the facts that the cycleway was marked and used as such, and that the trailer and van were parked so as to block it completely, are also taken into account, then the risks for cyclists are even more striking. The foreseeable consequence for cyclists using the cycleway was that they had either to dismount and wheel their bicycles along the grass verge, or leave the cycleway and pull into the path of drivers of vehicles using the nearside lane, or what was left of it, who themselves would have to use part of the offside lane, with faster traffic coming up behind.
16. For the appeal to succeed, the claimant has to show that the Judges' conclusion was clearly wrong and that it was not open to him as a reasonable inference from the primary facts. Before expressing a final view, I shall say something about the correct approach as a matter of law, though as I have noted above, this does not alter the nature of what is, in this case, the central issue of fact.

The law

17. The conventional and correct approach in any case where the claimant seeks damages for injury caused by negligence of the defendant is to ask three questions : did Mr Maguire owe the claimant a duty of care? If so, was the duty broken (did the defendant act carelessly)? If so, did the negligence cause the claimant's injury?
18. The third question is not entirely a question of fact. The legal concept of remoteness of damage comes into play, and in certain circumstances other legal factors also (cf. damages for economic loss caused by negligent advice: Banque Bruxelles Lambert S.A v Eagle Star Ins Co. [1997] AC 191). Here, the test has been authoritatively stated or re-stated by the House of Lords in Jolley v. Sutton L.B.C.[2000] 1 W.L.R.1082. The defendant is liable for injury caused in fact by his negligence in breach of a duty of care which he owed to the claimant, if damage of that kind or description was reasonably foreseeable as the consequence of his negligence, even though neither the extent of the injury nor the precise manner of its incidence was foreseeable by him. The House of Lords affirmed the authority of dicta in both Hughes v. Lord Advocate [1963] A.C.837 and Wagon Mound (No.1) [1961] AC 388 and that there is no inconsistency between them (per Lord Steyn at 1090C and Lord Hoffman at 1091E). The relevant kind or description of damage "is formulated by reference to the nature of the risk which ought to have been foreseen"(per Lord Hoffman at 1091D).
19. Lord Hoffman recognised that the question so formulated is essentially the same as is posed in deciding whether or not the claimant was owed a duty of care in the circumstances of the case-

"It is also agreed that the plaintiff must show that the injury which he suffered fell within the scope of the council's duty and that in cases of physical injury, the scope of the duty is determined by whether or not the injury fell within a description which could be said to have been reasonably foreseeable ................ the present law is that unless the injury is of a description which was reasonably foreseeable, it is (according to taste) "outside the scope of the duty" or "too remote"."(1091 A - C)

20. In this context, Lord Hoffman also considered cases such as Bolton v. Stone [1951] AC 850, where there was a foreseeable risk of injury but, in the circumstances, a reasonable man would not have thought it necessary to take precautions to guard against it. Thus the scope of the duty was limited or, as it might also be said, the defendants were not negligent in the circumstances of the case, notwithstanding the existence, as a matter of legal analysis, of a duty of care.
21. This overlap between duty and remoteness of damage, and what constitutes negligent conduct in the circumstances of the case, means that the three conventional questions to which I have referred above can be telescoped into one issue of fact in cases such as Jolley and also the present case, where no other complicating factors arise. That was true also of Howells v. Trefigin Oil the Court of Appeal judgment given by Beldam L.J. to which the Judge referred. Conscious of the admonitions in Jolley, not to refer to the facts of other cases in this field, I will say merely that Beldam L.J.'s dictum, that "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", was spoken in the context of whether Mr Maguire was at fault i.e. negligent, but it is equally applicable in deciding what was reasonably foreseeable by the defendant for the purposes of establishing whether a duty of care existed and whether damage was too remote.

This case

22. Although the Judge found in the passage quoted above that no injury was foreseeable to anyone, he implicitly recognised the existence of a duty of care owed to the claimant and other road users, where he found that "Mr Maguire discharged his duty of care to other road users", also quoted more fully above. His further finding that "the sole effective cause of the accident was [the claimant's] own failure to take due care for her own safety" strictly was not relevant, if no duty was owed and if there was no negligence, in any event. However, the Judge was doing no more than recognise that the same question of fact, or rather of inference from the primary facts (per Lord Steyn in Jolley at 1089B), arises under each of the three headings.
23. To that central issue of fact I now return. I would endorse the Judge's natural assumption that Mr Maguire owed a duty of care to other road users, when deciding whether and where to park his van and trailer, and to the claimant in particular. In my judgment, it affronts commonsense to say that he owed her no duty. He saw her approaching, using the cycleway, and of course if he parked there she would be forced into the nearside carriageway unless she chose to dismount and wheel her bicycle on the grass verge. If she decided to overtake the parked vehicle, with road and traffic conditions as they were, then she was certainly exposed to some risk of injury if the driver of another vehicle failed to appreciate the situation in good time, perhaps from momentary inadvertence or perhaps because of limited visibility due to spray. If a duty was owed, the next question is whether Mr Maguire in fact was careless of her safety. Mr Wingate-Saul Q.C. described his conduct as 'thoughtless', in my judgment that description is well-merited because, on the Judge's findings, he could have parked or stopped elsewhere and what he chose to do denied the claimant of the use of the cycleway, which was intended to segregate cyclists from motor traffic, for the convenience and safety of both. Moreover, he was required by the applicable Code of Practice ('Safety at Street Works and Road Works') and the clearway regulations not to obstruct the cycleway if it was not necessary for him to do so. I find it impossible to avoid the conclusion that he was careless of her safety, in the face of a reasonably foreseeable risk that she might be exposed to injury. I do not consider that the Judge was entitled to infer, on the findings of primary fact, that Mr Maguire was not negligent.
24. On this analysis, no separate question arises under the heads of causation and remoteness of damage. The kind and description of damage in fact suffered, namely, physical injury, was reasonably foreseeable, in my view, and for the reasons given above I do not consider that the Judge could correctly infer otherwise.
25. I therefore would hold that the claim in negligence was made out and that the appeal should be allowed.

Contributory Negligence

26. The Judge's finding that the claimant's own negligence was the sole effective cause of the accident could be relied upon by both defendants as equivalent to a finding of 100% Contributory Negligence (though that would not be jurisprudentially correct). But in my judgment as already stated the claimant is entitled to a finding that the accident was caused by the negligence of Mr Maguire. It was not disputed that the Second Defendants as his employers are vicariously liable for Mr Maguire's negligence. As regards the question of apportionment under the 1945 Act, Mr Wingate-Saul accepted that the damages recoverable should be reduced by 50% and perhaps by as much as 60%. Mr Turner Q.C. for the defendants did not address us on this issue. It is however necessary for us to make a finding, if the views I have expressed above are correct, and in my judgment, taking account of all the circumstances and also of the Judge's pronounced views after hearing all the evidence, I would hold that the damages should be reduced by 70 (seventy) per cent on account of her contributory negligence.

LORD JUSTICE ROBERT WALKER:

27. I have had the advantage of reading in draft both the judgment of Aldous LJ (in favour of dismissing the appeal) and that of Sir Anthony Evans (for allowing the appeal, but with a finding of 70 per cent contributory negligence). I have found this a difficult case, but in the end I have concluded that the appeal should be allowed, with the deduction for contributory negligence proposed by Sir Anthony Evans.
28. The House of Lords has frequently warned this court of the dangers of departing from the findings of fact made by the judge who saw and heard the witnesses. One such warning was given recently in a case which was cited to the court, Jolley v Sutton LBC [2000] 1 WLR 1082, in which Lord Steyn referred (at p.1089B) to a secondary finding of fact but said that

"perhaps it is more illuminating to call it an informed opinion by the judge in the light of all the circumstances of the case."

29. However Jolley v Sutton LBC also serves as a reminder that (as Lord Hoffmann put it at p.1091 H) reasonable foreseeability is not a fixed point on the scale of probability. A small risk may be unjustifiable if the risk can readily be eliminated. As Lord Reid said in Overseas Tankship (UK) v Miller Steamship Co Pty (The Wagon Mound No.2) [1967] 1 AC 617, 642,

"it does not follow that, no matter what the circumstances may be, it is justifiable to neglect a risk of such a small magnitude. A reasonable man would only neglect such a risk if he had some valid reason for doing so, e.g. that it would involve considerable expense to eliminate the risk. He would weigh the risk against the difficulty of eliminating it."

30. The judge found as a fact that Mr Maguire was not in breach of his duty of care to other road users in parking the van and trailer where he did, about 50 metres west of the entrance to Clifton Marsh Farm and in a way that completely blocked the cycle path and partly blocked the inside lane of the westbound carriageway. In his full and careful judgment the judge listed (at page 13 of the transcript) the matters of which he took particular account: the density of the fast-moving traffic; the fact that Mr Maguire knew of the cycle lane and had seen the claimant approaching on it; the fact that he did nevertheless park in such a way as to block the cycle lane; and that he gave no thought to alternatives to stopping in the westbound carriageway.
31. The judge did not at that stage in his judgment refer to the alternative courses of action which would have been open to Mr Maguire if he had thought about the possible danger to cyclists of blocking the cycle path. But the judge had earlier made findings on this point (at page 8 of the transcript):

"I find that it was possible for Mr Maguire to park off the road to erect the advance warning signs: in a farm and cottage driveway opposite the break in the central reservation through which he turned, at the cost of some inconvenient manoeuvring and walking; or on the nearside grass verge, at the risk of some, but probably not much, damage to the verge and some walking, or in a lay-by further to the west, at the cost of some walking. He could have dropped Mr Blomley off to erect the signs. He did not consider those possibilities and he parked where he did on the carriageway, not expecting to be there long, because he thought it was safe to park where he did, with his hazard lights on. He did not expect anyone to come cycling down the cycleway, not looking where they were going."

(The lay-by to the west was the one shown in some photographs in the trial bundle; the police moved the van and trailer into this lay-by after the accident.)

32. Mr Maguire had been candid about these possibilities when they were put to him in cross-examination:

"Q Did you in fact consider any of those alternatives before you did the work?

A Never entered my head because I never thought I was leaving my vehicle in a dangerous position with the hazard lights on.

Q There would have been no difficulty, would there, about dropping Mr Blomley off where you turn through the central reservation and leaving him to walk up the road erecting the signs as you got to each position?

A It never even entered my head to do it.

Q It may not have entered your head but there would have been no difficulty in doing that?

A Probably. I don't think there would have been a great difficulty in it but he just done one side of the road and I done the other.

Q It would have avoided you blocking the clear way and blocking the carriageway, wouldn't it?

A Perhaps it would have if I had done it like that, yes."

33. Mr Maguire did not suggest that any of the alternatives (apart from pulling on to the verge) was impracticable, either because of time pressure or for any other reason. It appears that the workmen did have plenty of time, because they were already on site at 7.45am, but were not permitted to narrow the carriageway with cones and start work until the rush-hour was over at 9.15am (or in practice sometimes 9.30am, Mr Maguire said). All they had to do until then was to erect the warning signs, have breakfast, and prepare to put out the cones.
34. The judge did not, in his review of the relevant factors and his conclusion at pages 13 and 14 of the transcript, refer to the relative ease with which Mr Maguire could have carried out the task of erecting the four pairs of warning signs without at any time obstructing the cycle path. Moreover he appears to have concluded, without any explanation of his reasoning, that because the van and trailer combination was readily visible as an obstruction it could not be a dangerous obstruction, regardless of other factors (including the density and speed of the traffic, the poor weather conditions, and the special vulnerability of pedal cyclists). On the last point it is to be noted that the judge is himself a regular cyclist.
35. In these circumstances I have with considerable hesitation come to the conclusion that these omissions from an otherwise clear and thorough judgment are sufficient to enable this court to review the judge's conclusion that Mr Maguire was not in breach of his duty of care to other road users. It was certainly open to the judge on the evidence to find that the claimant must herself bear the larger share of responsibility for her very unfortunate accident. But I am persuaded that it was not open to him, on his own findings of primary fact, to find that Mr Maguire was not in breach of duty at all and that he should bear no part of the responsibility.
36. I would therefore allow this appeal and substitute an order on the lines proposed by Sir Anthony Evans.

LORD JUSTICE ALDOUS:

37. The appellant Mrs Foster appeals against the judgment of Bell J of 16th October 1999 which dismissed her claim for damages for negligence.
38. On 17th May 1995 at about 07.45 hours Mrs Foster who was riding a bicycle collided with the rear of a trailer to a van that had been parked by Mr John Maguire at the side of the westbound carriageway of the A584. She suffered dislocation of her spine leaving her with incomplete tetraplegia and with serious and permanent disability. It is not necessary to deal with the serious consequences of the accident as the hearing before the judge and this appeal were concerned solely with liability. At the time of the accident Mr Maguire was working for the second defendant Irwell Construction Ltd. They accept that they are vicariously liable for any negligence on the part of Mr Maguire.
39. Mrs Foster accepts that she was in part responsible for the accident, but her claim failed because the judge held that no-one could have reasonably foreseen that she or any other cyclist riding down the road could, in the circumstance that existed, have been put at risk by the parked trailer.
40. Mrs Foster did not dispute the primary facts as found by the judge, but submitted that he had erred in law, or alternatively came to a conclusion as to what was foreseeable which could not be sustained by the primary facts. I can therefore set out the facts using the judge's judgment.
41. The A584 was at the time of the accident a dual carriageway subject to a 70 mph speed limit. The westbound carriageway in which the van and trailer were parked was divided over its material length into two lanes for vehicular traffic, divided by a broken chain line. There was a continuous white line approximately one meter from the near-side edge which consisted of concrete curbing and gully. The road surface was tarmacked with embedded stone chippings. The road was signed and designated as a clearway and the near-side continuous white line provided a cycle lane which had been completed about a week before the accident. At the date of the accident it had not been legally designated as a cycle lane, but the relevant signs and markings were visible. That cycle lane was about 1.22m wide, the near-side traffic lane to the side of the cycle lane was 3.43m wide and the offside traffic lane was 3.74m wide.
42. Irwell had been engaged by the Local Authority to jet-clean slotted drainage channels in the near-side and off-side edges of both east and west carriageways of the A584. Their contract restricted working times to 9.15am to 3.45pm. It followed that before work could commence the area in which work had to take place had to be coned-off and also working signs erected in advance of the cones.
43. On the morning of 17th May Mr Maguire left Irwell's depot in the van pulling a trailer intending to erect 800, 600, 400 and 200 yard signs on the central and near-side verges of the westbound carriageway so as to warn oncoming traffic of activity to be carried out by Irwell. Those signs had been laid down after work had ceased on the previous day. He was accompanied by Mr Blomley. Mr Maguire drove down the eastbound carriageway and turned into the central reservation so as to turn right. He stopped and waited for an opportunity to carry out that manouevre. When the road was clear he made a U-turn into the westbound carriageway. He then proceeded for about 50 meters before parking. The judge held that it probably took Mr Maguire about 11 seconds to complete that manouevre. The van and trailer were parked parallel to the near-side kerb with the near-side of the trailer 15cm from the kerb. The trailer was 2.25m wide so it projected 2.4m into the westbound carriageway. It effectively blocked the cycle lane and then took up about 1.2m of the near-side traffic lane. That left about 2.2-2.25 of the near-side traffic lane free and the whole of the off-side lane. The complete unit of the van, hitch and trailer was 8.22m long. The road leading to the accident was straight for about 600m.
44. Having parked the van, Mr Maguire and Mr Blomley got out. Mr Blomley put up the sign on the near-side verge and got back into the van. Mr Maguire waited for a gap in the traffic before crossing the road and started to erect the sign on the off-side central reservation verge more or less opposite the van and trailer. The signs were 6ft high and about 4ft wide. It was when Mr Maguire had his back to the road putting up his sign that the accident occurred. However he had seen the claimant cycling westwards down the cycle lane of the A584 when she was a considerable distance, not more than 383.5m, away.
45. The judge accepted the evidence of Mr Maguire that the van beacon, side-lights and hazard lights were all showing at the time of the accident.
46. At the time of the accident it was raining and the sky was overcast. However the judge found that there was good visibility for a rainy, May day. He held that there was visibility of some hundreds of meters looking westward to the point of the accident unless some specific factor interfered. The judge held that the trailer was visible with the naked eye, or through glasses, for nearly 600 meters at the time and in the weather conditions that occurred.
47. Both lanes of the westbound carriageway bore heavy traffic over the morning period when the accident occurred. Traffic in the inner lane regularly travelled in the region of 50 mph and in the outer lane in the region of 60-70 mph. The road was well-used by cyclists particularly those travelling to work at British Aerospace's Warton Base. That was where Mrs Foster worked and was therefore her destination on the morning.
48. Mrs Foster regularly rode her bicycle to work in the summer months. She was at the time wearing wrap-around tinted glasses. The tinting sharpened vision in bright light. It did not obscure it, even in dull light. As her journey had progressed, the rain became heavier and rain and spray from traffic got on her glasses which she could wipe with her cycling gloves so vision through them was not too bad.
49. The judge accepted her evidence that she was cycling at about 12-15 mph and that her stopping distance, including thinking time, would have been between 7.5-10m for that speed. She knew that she was on a clearway and in a cycle lane.
50. She gave evidence as to what she did shortly before the accident. However the judge rejected it as not being an accurate account. He seems to have accepted that she had looked up at about 300m from the scene of the accident, and again at about 185m but she did not notice the parked van or trailer. It appears that she did not look up again until shortly before the accident. The judge held (page 10):

"It follows in my judgment that if Mrs Foster saw the trailer before she hit it, it could only have been a moment before and not in time to swerve, as she recalled. So I cannot accept her evidence in that regard …

I find that Mrs Foster did not see or notice the trailer until it appeared in her 5-10 yard, head-down riding vision and that she did not swerve before she hit it head on."

The judge concluded that if the claimant had looked up with any care, when she looked up about 185m before the accident, she would have seen and noticed the parked van and trailer lit and standing parked as they must have been at that time.

51. The judge found that the van and trailer were probably stationary and visible when Mrs Foster said she looked up about 300m from the place where the accident happened. He concluded that the van and trailer would certainly have been obvious as well as visible to her had she cared to look up with a view to seeing what was ahead of her at any time over the last 185m of her ride.
52. It follows that the claimant must have been cycling head down looking up at intervals. Her evidence was that she looked up 300m and 185m before the accident, but did not see the van or trailer. On the judge's finding of fact that must have been because she did not look with care. He did not come to any conclusion why that should be, but it is reasonable to assume that the rain and spray from passing vehicles must have played a part.
53. Having dealt with the facts the judge came to consider whether Mr Maguire was negligent. He stated that it was agreed that the question which he had to ask himself was; "whether leaving the van and trailer, in the position in which they were parked, would present a possible source of danger to other road users using the road in a way in which he, Mr Maguire, could reasonably expect them to use it, bearing in mind that a road user is not bound to anticipate folly in all its forms, but he is bound to pay regard to the carelessness by other road users where experience shows that such carelessness is common". Mr Wingate-Saul QC, who appeared for the claimant at the trial and in the appeal, accepted that it had been agreed that that was the question the judge had to decide. He did not resile from that agreement.
54. The judge went on to record the submissions of Mr Wingate-Saul. In particular he referred to the Various Trunk Road (Prohibition of Waiting) (Clearways) Order 1963 and Chapter 8 of the Booklet on the Code of Practice which applied to the actions of Mr Maguire. As the carriageway in question was a clearway, waiting was prohibited. The booklet allowed for an exception for waiting which was connected to the maintenance of the road, but only if it could not be done without waiting on the carriageway. That was not this case as Mr Maguire could, with some inconvenience, have parked elsewhere or dropped off Mr Blomley to walk west erecting the signs.
55. The judge's conclusion was set out in this passage:

"I take account of the provisions to which I have been referred. I take particular account of the fact of heavy, fast-moving traffic on the road in question at the time in question, recognised as Mr Wingate-Saul stressed by the contractual obligation not to do works on the road during certain, busy hours. I take particular account of the fact that Mr Maguire knew of the clearway and cycle lane, and should have known of its regular use, and did know of Mrs Foster's approach, and yet blocked the cycle lane. I accept that Mr Maguire gave no thought to alternatives to stopping on the road. I take account of all the points made on Mrs Foster's behalf in what is such an important case for her. But however I look at the situation as I found it to have been, I cannot judge that the van and trailer where Mr Maguire left them presented a possible source of danger to other road users using the road in a way which Mr Maguire could reasonably expect them to use it.

In my judgment no one could reasonably have foreseen that Mrs Foster or any cyclist riding down this straight road, with reasonable visibility, towards a van and trailer showing beacon, side lights and hazard lights, for about a minute after it had been parked, would continue straight into it, which is what in my judgment happened.

That is not necessarily the end of the matter so far as the question of negligence of Mr Maguire is concerned, because Mr Machell accepted (albeit with some reluctance), that if the parked van and trailer presented a reasonably foreseeable source of danger to traffic, for instance by creating a bottle neck of a kind which might foreseeably present a risk, then the Defendants would be responsible for injury in fact caused by the parked van and trailer, albeit in an unpredictable way. See Hughes v Lord Advocate [1963] AC 837, per Lord Reid at page 845.

But in my judgment this van and trailer, parked on the nearside of a one-way carriageway with a total width of 8.39m or 27ft 6ins and extending 2.4m or 7ft 10ins into the carriageway, did not present a reasonably foreseeable, obstructive source of danger to anyone, bearing in mind the flat, straight nature of the approach, the visibility at the time, and the ways in which the van and trailer were lit and marked, even allowing for some commonplace carelessness of other road users. Placed where they were, lit as they were with flashing beacons, and side lights, and flashing hazard lights, oncoming traffic was given ample time to negotiate them safely. I cannot accept Mr Wingate Saul's submission that they created a danger and a dilemma, difficult to judge.

Mrs Wilkinson said that approaching in the nearside carriageway, she passed the van and trailer with difficulty because of traffic in the outside lane, slowing but not stopping. But Mrs Wilkinson was relatively close to the van and trailer as they pulled across the path of the westbound traffic and came to a stop, and I have already felt unable to rely on Mrs Wilkinson's account of visibility.

As the case progressed it occurred to me that it might be possible to criticise Mr Maguire for not keeping a lookout on oncoming traffic, including Mrs Foster, or not deputing Mr Blomley to do so, with a view to some indication or shouted warning, if a problem or potential danger seemed to develop. The booklet advises that those who erect advance warning signs should face oncoming traffic as they do so, obviously with their own safety and that of oncoming traffic in mind. But I accept that the design of the signs made it difficult to do this. If either Mr Maguire or Mr Blomley had walked back far enough to warn vehicular traffic, the time taken to effect an otherwise short operation would have been extended, and it is difficult to see what more useful warning could have been given than the flashing beacon and hazard lights. A shout might well have saved a cyclist from riding head down into the trailer, without looking ahead, but such a situation was not foreseeable, in my view, by Mr Maguire. If the parked van and trailer did not present a reasonably foreseeable danger, it is impossible to see why Mr Maguire should do any more than he did.

For all these reasons I find that Mr Maguire, and therefore Irwell, was not negligent. In my judgment, Mr Maguire discharged his duty of care to other road users including Mrs Foster, by ensuring that his van and trailer were parked close to the nearside kerb on a straight, wide road in reasonable visibility and marked by beacon, hazard lights and side lights.

In my judgment the sole effective cause of the accident was Mrs Foster's own failure to take due care for her own safety, in riding head down at 12 to 15mph with visibility of only 5 to 10 yards, and without noticing the Defendant's van or trailer, and without looking up for the last 185m or thereabouts before she struck the trailer."

56. Before us Mr Wingate-Saul submitted that there were two causes of the accident, namely the negligence of Mr Maguire and the negligence of Mrs Foster. He submitted that it followed that there should be some division of liability between them, probably 40/60 against Mrs Foster.
57. Mr Wingate-Saul emphasised that the van/trailer combination should not have been parked in the roadway as that was a breach of the Various Trunk Roads (Prohibition of Waiting) (Clearways) Order 1963. Further he submitted that it had been parked in contravention of the advice in the Code of Practice in the Booklet. That stated "You must park your vehicle safely before you …. set up signs. If you cannot park it off the road make sure your vehicle can be clearly seen by other drivers … Do not obstruct a footway or cycle track when parking off the road." He also submitted that the parking of the van and trailer across the cycle lane was wrong even though no formal statutory order authorising the cycle-way had yet been made. But his real criticism of the judge was that the judge had erred in law in that he had not approached the question in accordance with the advice of the House of Lords in Jolley v Sutton London Borough Council [2000] 1 WLR 1082 and (The Wagon Mound (No.2)) Overseas Tankships (UK) Ltd v The Miller Steamship Company [1967] 1 AC 617. He also submitted that the conclusion reached by the judge was not one to which he was entitled to come, taking into account the conditions at the time of the accident and the events that happened.
58. Mr Turner QC who appeared for the respondents submitted that the judge had correctly set out the test to be applied and had then gone on to apply it to the facts. There was, he submitted, no error of law and the judge was fully entitled to come to the conclusion he did.
59. In Wagon Mound (No.2), Lord Reid, giving the opinion of the Privy Council, pointed out that Bolton v Stone [1951] AC 850 posed a new problem. In that case it was foreseeable that a passer-by might be struck by a cricket ball hit by a batsman, but, as the House of Lords held, the risk was so small that a reasonable man would have been justified in disregarding it and taking no steps to eliminated it. Lord Reid said at page 642 E:

"But it does not follow that, no matter what the circumstances, may be, it is justifiable to neglect a risk of such a small magnitude. A reasonable man would only neglect such a risk if he had some valid reason for doing so, e.g. that it would involve considerable expense to eliminate the risk. He would weigh the risk against the difficulty of eliminating it. If the activity which caused the injury to Miss Stone had been an unlawful activity, there can be little doubt but that Bolton v Stone [[1951] AC 850] would have been decided differently. In their Lordships' judgment Bolton v Stone did not alter the general principle that a person must be regarded as negligent if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man. What that decision did was to recognise and give effect to the qualification that it is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it."

60. In that case there was no justification for discharging the oil into Sydney Harbour and a reasonable man would have realised that there was a real risk that it might catch fire. That risk was one which would occur to the mind of the reasonable man and he would not brush it aside. That being so, the reasonable man would not neglect such a risk if action to prevent it was not difficult. Thus failing to take action was negligent.
61. In the present case, the judge held that the signs could have been erected without the need to park the van and trailer on the A584 and that that could have been done with little inconvenience. Thus it was necessary for the judge to consider whether the actions of Mr Maguire created a real risk to users of the A584, namely a risk which a reasonable man would not brush aside as far fetched or a risk which was a mere possibility which would not influence the mind of a reasonable person.
62. I have set out the agreed question that the judge asked himself. In my view it was consistent with the Wagon Mound (No.2) although couched in general and different terms.
63. The judge's approach when answering that question was to remind himself of the traffic and the road conditions. He concluded - "I cannot judge that the van and trailer where Mr Maguire left them presented a possible source of danger to other road users using the road in a way which Mr Maguire could reasonably expect them to use it." I am not sure what the judge had in mind when he referred to users using the road in a way which Mr Maguire could reasonably expect them to use it. I suspect he had in mind a normal user, because he went on to consider whether the van and trailer presented a foreseeable source of danger. He concluded – "In my judgment the van and trailer … did not present a reasonably foreseeable, obstructive source of danger to anyone … even allowing for some commonplace carelessness of other road users. Placed where they were … oncoming traffic was given ample time to negotiate safely. I cannot accept … that they created a danger and a dilemma, difficult to judge."
64. In Jolley a boat was left abandoned outside a block of flats. Two boys aged 13 and 14 propped it up and started to repair it. It fell on the plaintiff causing him damage and he sued the Borough Council. The judge held that the Borough Council were negligent in not removing the boat. There was in his words a "trap or allurement" to the plaintiff. He concluded at pages 1085 and 1086:

"I have not doubt that the presence of the boat was something which one ought to anticipate would be an attraction to children of differing ages. Younger children might simply play on it and in its rotting condition might suffer injury perhaps of a quite minor nature. Mr Palmer stressed that these two boys were not so much playing with the boat as working on it. I do not believe any such distinction assists the defendants. Play can take the form of mimicking adult behaviour. It was reasonably foreseeable that children including those of the age of the plaintiff would meddle with the boat at risk of some physical injury. So far as this type of accident was concerned, it is really only likely to occur if the child was a young teenage boy with strength and ability to raise the boat and prop it up. Abandoned cars were clearly treated by the defendants as a potential source of danger and this abandoned boat must also have fallen into that category. Although the warning DANGER contained on the stickers is not conclusive as to whether a particular object presented a danger it is at least a pointer in that direction.

…

I find that the type of accident and injury which occurred in this case was reasonably foreseeable (albeit that it involved significant meddling with the boat by two young teenage boys and that the injuries proved to be very severe) and that the actions of the plaintiff and/or Karl did not amount to novus actus. Accordingly, I find the defendants in breach of their duty to the plaintiff as occupiers and (subject to the point on contributory negligence considered below) liable to the plaintiff for the injury, loss and damage which he has sustained."

65. The Court of Appeal came to the contrary conclusion, despite the concession by the Borough Council that they were negligent in not removing the boat. Their reason was that the accident was of a different type from anything that the Borough Council could have foreseen. It was not reasonably foreseeable that an accident could occur as a result of the boys deciding to work on a propped-up boat. The House of Lords reversed that decision.
66. Lord Steyn said that the difficulty facing the Borough Council was that the Court of Appeal never squarely addressed the question of whether the judge's critical finding was open to him on the evidence. He went on to conclude that the judge had been entitled to come to the conclusion that he did. He said at page 1089 A:

"For my part the judge's reasons for that finding are convincing in the context of teenage boys attracted by an obviously abandoned boat. And I do not regard what they did as so very different from normal play. The judge's observation that play can take the form of mimicking adult behaviour is a perceptive one. It is true, of course, that one is not dealing with a challenge to an issue of primary fact. The issue whether an accident of the particular type was reasonably foreseeable is technically a secondary fact but perhaps it is more illuminating to call it an informed opinion by the judge in the light of all the circumstances of the case. In my view it was an opinion which is justified by the particular circumstances of the case. Counsel has not persuaded me that the judge's view was wrong. And I would hold that the Court of Appeal was not entitled to disturb the judge's findings of fact."

67. I will come back to consider the applicability of that approach to this case, but will first deal with the submissions of the claimant based upon the speech of Lord Hoffmann.
68. At page 1091 H Lord Hoffmann set out the point in issue in this way:

"The short point in the present appeal is therefore whether the judge [1998] 1 Lloyd's Report 433, 439 was right in saying in general terms that the risk was that children would "meddle with the boat at the risk of some physical injury" or whether the Court of Appeal were right in saying that the only foreseeable risk was of "children who were drawn to the boat climbing upon it and being injured by the rotten planking giving way beneath them:" per Roch LJ [1998] 1 WLR 1546, 1555. Was the wider risk, which would include within its description the acts which actually happened, reasonably foreseeable?"

69. Lord Hoffmann went on to explain that what was reasonably foreseeable was not a point fixed on the scale of probability. Such features as cost and convenience had to be considered in deciding whether a given probability of injury generated a duty to take steps to eliminate the risk. No doubt he had in mind the necessity of a court taking into account what is the scope of the duty. He continued at page 1092 D:

"The Council admit that they should have removed the boat. True, they make this concession solely on the ground that there was a risk that children would suffer minor injuries if the rotten planking gave way beneath them. But the concession shows that if there was a wider risk, the Council would have had to incur no additional expense to eliminate it. They would only have had to do what they admit they should have done anyway. On the principle as stated by Lord Reid, the wider risk would also fall within the scope of the Council's duty unless it was different in kind from that which should have been foreseen (like the fire and pollution risks in the Wagon Mound No 1) and either wholly unforeseeable (as the risk was assumed to be in the Wagon Mound No 1) or so remote that it could be "brushed aside as far-fetched:" (see Lord Reid in Wagon Mound No. 2 [1969] 2 AC 617).

70. In Jolley the Borough Council had admitted that there was a foreseeable risk that children would suffer injury in certain limited circumstances. Upon the judge's findings of fact there was a risk, a risk that was not far-fetched or a mere possibility that would not have influenced the mind of a reasonable person, that children would meddle with the boat. It followed, adopting Wagon Mound (No.2), that the risk was foreseeable, if the judge's conclusion was correct. Such a conclusion was one of secondary fact as Lord Steyn pointed out at page 1089; but even so, the House held it was not open to the Court of Appeal to reverse it, unless it came to the conclusion that the finding of the judge was one which he was not entitled to come to on the evidence.
71. Mr Wingate-Saul submitted that the judge had not approached the case to ascertain whether the action of Mr Maguire had given rise to a real risk to road users. Thus he had failed to adopt the approach required by Jolley. Therefore the judge erred in law.
72. I accept the submission of Mr Turner that there is no error of law in the judgment. The judge was concerned with the question of whether injury was foreseeable in the light of the actions of Mr Maguire. The test was whether the van and trailer presented a possible source of danger to road users using the road in a way that a person such as Mr Maguire could reasonably expect them to use it. He concluded that it did not present a possible source of danger to such road users. His reasoning was that no-one could have reasonably foreseen that Mrs Foster or any cyclist riding down this straight road would continue straight into the van. Further it did not present a reasonably foreseeable, obstructive source of danger to anyone even allowing for commonplace carelessness of other road users. He did not accept Mr Wingate-Saul's submission that the van created a danger and a dilemma, difficult to judge. In essence the conclusion reached by the judge was that the van and trailer, parked as they were, presented no risk other than one which was far fetched.
73. As I have said Mr Wingate-Saul also submitted that the conclusion of the judge was not sustainable on the facts. He drew to our attention that Mr Maguire had driven into the westbound carriageway and parked partially blocking the clearway in a manner so as to block the cycle lane, when he knew Mrs Foster was approaching. If she wished to proceed, as she was entitled to do, she would have been forced to move out into the path of traffic approaching from behind. The rain and consequent spray made that manouevre hazardous. It followed that Mr Maguire, when parking as he did, created an unnecessary traffic hazard for car drivers proceeding along the clearway at speed in rainy conditions. He submitted that Mr Maguire had no need to park on the A584 and was under a duty to eliminate the hazard caused by parking on a clearway. Further he created a real risk for cyclists whose path he knew he had blocked as cyclists who gave the van and trailer reasonable clearance would have to move into the near-side lane. The risk of a cyclist being forced into collision with the rear or side of the van or trailer was clearly foreseeable. He submitted that the creation of the risk was inexcusable. It was contrary to the Code of Practice, contrary to the law governing clearways. It followed, he submitted, that Mr Maguire was partially at fault.
74. I have felt the force of those submissions. However the judge's view, what Lord Steyn called an "informed opinion", was reached after listening to all the evidence and a hearing of about 2½ days. That was an advantage I have not had. His opinion was, in my view, one to which he was entitled to come on the primary facts. The van with its flashing beacon and hazard lights could be seen several hundred meters away, despite the rain. The road was straight. Even after parking, the unobstructed road was about 6m wide. The result was that after the accident traffic continued to flow without build-up. Mrs Foster could have stopped within 10m, but failed to look ahead to see the van.
75. In those circumstances it would not be right for me to conclude that the judge's decision should be set aside.
76. I would dismiss the appeal.
Order: Appeal allowed with costs here and below, to be subject to detailed assessment if not argueed; the order of the judge below is set aside; permission to appeal refused; damages to be assessed in the light of the judgment. (Order Dose not form part of the approved judgment)