England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WANDSWORTH COUNTY COURT
(HIS HONOUR JUDGE WINSTANLEY)

		Royal Courts of Justice Strand London WC2 Thursday, 22nd February 2001

1. LORD JUSTICE PILL: Lord Justice Kay will give the first judgment.
2. LORD JUSTICE KAY: On 7th July 1999, the claimant went for a pleasure ride on his Suzuki GX 750cc motorcycle. He was intending to go to Brighton but he got lost on the way and as a result his route took him along Countryman Lane, Shipley in Sussex. Sadly there his pleasure ride came to an abrupt end when he collided with a crop sprayer pulling a trailer. That vehicle was being driven by the First Defendant in the course of his employment with the Second Defendant.
3. The claimant sought damages having suffered very severe injuries alleging that the collision resulted from the negligence of the defendants. The defendants denied that they were negligent and asserted that the accident had been caused or contributed to by the negligence of the claimant.
4. On 1st June 2000, His Honour Judge Winstanley, sitting in the Wandsworth County Court, found that the defendants had been negligent and rejected the allegation of contributory negligence. Judgment was accordingly entered for the claimant for damages to be assessed. The defendants now appeal against that decision by permission of the single judge contending that the judge was wrong to find that negligence on the part of the defendants had been established and that even if they had been found to be negligent, the judge should have concluded that the claimant's own negligence had been established and that it had contributed to the accident.
5. The layout of the road at the scene of the accident undoubtedly played a significant role in the happening of the accident. Countryman Lane is, as its name would suggest, a small unclassified rural road. In the direction in which the claimant was travelling, he had to negotiate a bend that curved away to his left hand. Round that bend, although he did not know it at the time, was a junction with a road called Butterstocks Lane. This road joins Countryman Lane from what would have been the claimant's left or nearside. At the junction, Butterstocks Lane divides into two with a grass triangle dividing the two limbs, one limb being provided for traffic turning left and the other for traffic turning right into Countryman Lane.
6. The speed limit at this point is the ordinary limit for such a country road of 60 miles per hour. There are no markings or signs on Countryman Lane to warn of the junction with Butterstocks Lane, but across each of the mouths of Butterstocks Lane there are "give way" markings.
7. The accident happened at about mid-day on what was a bright sunny day with good visibility. As the claimant negotiated the left-hand bend leading to the junction, the First Defendant pulled out of the Butterstocks Lane intending to turn right. The claimant was unable to stop and collided with the First Defendant's vehicle.
8. The judge found that the claimant did not know the road but that the First Defendant was very familiar with it and would have known that there was no sign warning a motorist travelling in the direction that the claimant approached that there was a junction concealed by the bend.
9. The precise events leading up to the collision were not greatly in dispute, but it is helpful to record a number of facts as found by the judge. He accepted the First Defendant's evidence that he had stopped at the junction when he reached the give way sign. At that point in time he would have been able to see for about 46 metres in the direction from which the claimant was approaching. The claimant would have been able to see the front of the crop sprayer if it was stationary at the junction when he was about 53 metres away from it.
10. The judge accepted that when the First Defendant pulled out the claimant's motorcycle could not have been visible to him. At the time when the claimant first saw the crop sprayer, it was just about on to what would have been his offside. The trailer, however, would have been blocking the rest of the carriageway which had no central markings.
11. The claimant in evidence said that when he first saw the crop sprayer it appeared to be on its own side of the road. He was unaware that there was a junction from which it might have just emerged and he was unaware that it was pulling a tractor that might be blocking the road. He, therefore, assumed that his side of the road would be clear.
12. There was some dispute as to the speed of the motorcycle. The judge concluded that at the moment when the claimant applied his brakes he was travelling at 45 miles per hour.
13. The allegations of negligence relevant to this appeal as pleaded against the First Defendant were that, knowing the nature of the bend and knowing the lack of any signs warning about the junction, he should not have driven the slow-moving vehicle onto Countryman Lane without taking steps "to ensure that eastbound traffic was alerted to and warned of his presence". More specifically it was alleged that he should have done this "either by means of a warning triangle or other signal or by having a third party walk down Countryman Lane and stop traffic".
14. Apart from vicarious liability for the First Defendant, it was alleged that the Second Defendant was negligent for not giving the First Defendant adequate instructions about safety in such circumstances.
15. At the hearing a further allegation of negligence was raised against the First Defendant, namely that he ought to have taken a different and safer route that would have avoided his having to emerge from this junction at all.
16. The judge concluded that the bend in question was "an unusually dangerous bend". He did so because of the presence of the junction immediately round the bend and the absence of any warning of the junction.
17. He also concluded that the crop sprayer with its trailer attached was "an unusual vehicle". He did that by reason of its width, 2.85 metres, and its overall length, 9.2 metres, and also by reason of the fact that it was by its very nature a slow-moving vehicle.
18. Having reached those conclusions, he decided that there had been a duty on the First Defendant "to make other road users, particularly road users coming from the east, aware of the imminent exit of this unusual vehicle into this dangerous bend". He, therefore, found that the First Defendant was negligent for not taking any such precautions and the Second Defendant was negligent for not advising or instructing him to do so.
19. The judge found that there were two things that the First Defendant could have done. First he concluded that he could have stopped at the give way sign at the junction, left his vehicle with its hazard warning lights on and walked up the road and placed a red-coloured warning triangle in the road. He indicated that this would have involved a walk but no more than 60 metres or so.
20. The other measure that he considered could have been taken were to switch on the flashing light on his cab, to sound the horn on his vehicle and to flash the headlights of the vehicle as it pulled out of the junction. He concluded that although the argument that the First Defendant should have taken an alternative route had not been pleaded, he "would, if need be, find against the defendant on that basis as well".
21. There was an alternative route that could have been taken by the First Defendant, and it was said that this would have avoided the junction altogether. It is necessary to return to that matter and to the evidence such as there was in relation to that issue.
22. The judge then considered the issue of contributory negligence. It is perhaps convenient to read his findings in this regard in full. In those findings he made reference to the evidence of Mr Shellshear who, it should he explained, was an expert called on behalf of the defendants. He said at page 133G:

"The question I still have to answer is, was the claimant negligent? I said when he began to decelerate he was about 57 metres away and very shortly after that saw the tractor unit as he began to take his avoiding manoeuvre, having realised the trailer was behind it, he had got down to 45 miles an hour from the 60 that he had been doing before the bend, and the argument that in those circumstances he had been negligent arises very much from Mr Shellshear's statement at page 58, where he says, 'To be able to react and stop in a distance of 53 metres the claimant's speed should be no more than 42 to 48, depending on the reaction time; this allows no margin for safety and assumes coming to a halt just before touching the obstruction; if the obstruction was opposing the claimant then 53 metres is reduced as is the maximum speed; realistically I would not expect a motorcycle to approach this scene with full visibility of 53 metres at a speed of more than 35 to 40 miles an hour'. That is all said, of course, against an assumption that every moment one is looking at one's speedometer, that one has in mind at every moment the safe stopping distances in the Highway Code. All I can find, and all I do find, is that all right, the claimant may not absolutely have measured up to those standards, but those seem to me to be standards of perfection, and in having reduced his speed to 45 miles an hour, being aware at the first possible opportunity of the existence of the tractor unit and of braking, and, if not steering, allowing himself to be directed, as he said in his evidence, towards what he hoped would be the softest part, the tyre of this tractor unit in his approach and dealing with the crisis the claimant, in my judgment, was not negligent and his driving did not, in my judgment, form part of the cause of this accident."

23. Mr Ticciati, on behalf of the defendants, attacked both the findings of negligence against his clients and the finding that the claimant was not negligent. He has helpfully dealt separately with each of the matters that the judge concluded amounted to negligence, and I deal with each in turn.
24. Firstly, he dealt with the placing in the road of a red triangle. It is submitted by Mr Ticciati that in the circumstances of this case it was quite unrealistic to think that a vehicle of this kind ought to stop every time it approached a junction of the type with which the Court is concerned, so that the driver could leave the vehicle and walk down the road. Clearly, there was nothing that was impossible in taking that action, but it is submitted that to suggest that was necessary is contrary to common sense.
25. So far as the giving of warning is concerned, firstly by sounding the horn, it is submitted that the judge was wrong to find that the First Defendant was under a duty to sound his horn in the circumstances and also wrong to find that the omission so to do was causative of the accident. It is pointed out that there is no provision in the Highway Code which supports the proposition that the First Defendant was under such a duty to sound his horn; further, the need for it had not been supported by the claimant's expert and, indeed, there had been no specific averment in the Particulars of Claim that the defendant ought to have done so.
26. So far as causation in relation to the sounding of the horn, it is submitted that at the time when the horn would have been sounded the claimant was travelling at about 60 miles per hour. He was a considerable distance away. He was wearing a motorcycle crash helmet and the wind would have been blowing in his ears. It is submitted that there is no evidence upon which the judge could have reached the conclusion that the claimant would have heard the horn above the noise his engine was making. Even if there had been, there was insufficient evidence to enable the judge to reach the conclusion that it was more likely than not that the claimant would have responded to hearing a horn in such a way as to avoid the accident.
27. So far as the use of flashing lights was concerned, there the allegation was put in two distinct ways. The first was the switching on of flashing lights on the crop sprayer. There was a light on the top of the crop sprayer and there was also a light on its offside. If a single switch had been turned on, it is accepted that both those lights would have come on and would have been flashing.
28. On behalf of the defendants it is submitted, however, that there was no provision in the Highway Code supporting the proposition that there was a duty to turn the lights on in such circumstances. Again it is pointed out that there was no assertion by the claimant's expert that that was necessary and once more no pleading specifically that that ought to have been done. Further it is submitted that the First Defendant gave evidence that it was his practice only to turn the flashing lights on when he was on main roads so as to warn other traffic of his slow-moving vehicle. In those circumstances it is submitted that the judge should have concluded that to do as he did was not in any way negligent. It is submitted that even if one came to the conclusion that the lights should have been switched on, there was no way in which the judge could have concluded that it would have prevented the accident.
29. It is pointed out that since the claimant was coming round a left-hand bend he would have seen the nearside of the crop sprayer first and that that would be the first thing to alert him. It would only be as he continued on that the middle would have come into view with the flashing light on top, and then further round the bend still the offside flashing light would have been observed. By this time it is submitted that the motorcyclist was aware of the vehicle coming towards him and the flashing lights would have made no significant difference to him.
30. Further, it is suggested that having regard to the nature of the day, a bright sunny day, it is unlikely that the claimant would have seen the flashing lights even if they had been on or if he had seen them, it would have been too late to make any significant difference to his ability to stop and avoid the accident. Finally in this regard it is said that the cause of the accident was the claimant's failure to appreciate that the crop sprayer was towing a trailer until too late. The flashing lights, even if they had been activated, would not have alerted the claimant of this fact, and it is suggested that it is more likely that they would have distracted him by causing him to look at the vehicle with the lights on with the reuslt that he would have seen the trailer even later.
31. So far as the allegation that he should have flashed his headlights is concerned, the judge made no specific finding. It is accepted that this is, nonetheless, a matter that can properly be raised in the course of this appeal. The defendants argue that in relation to that allegation there is no evidence at all upon which the Court could conclude that flashing his headlights at any stage would have been likely to make a significant difference to the time available to the claimant to appreciate that there was a problem and cause him to slow down earlier than he did. It is submitted that there was no evidence because this matter was never explored in any detail at trial that would enable such a conclusion. In particular the claimant was never asked about what he would have thought if he had seen flashing lights. In those circumstances it is submitted that that action, even if considered by the judge, must again have led to a conclusion that there was no negligence as a result of any failure to flash lights.
32. So far as the suggested alternative route is concerned, the point is taken that at no stage was there an amendment to the Particulars of Claim to make this allegation. As a result, the defendants were not prepared to deal with such an allegation, and it is submitted that the evidence in this regard was so inadequate that no Court could properly have reached the conclusion that another route was in fact a better or safer route than the one employed by the First Defendant.
33. On behalf of the claimant it is submitted that it is necessary to start from the point of view of considering the driving of the motorcyclist. The judge concluded that he was travelling at 45 miles per hour. Having regard to the speed limit of 60 miles per hour, it is submitted that that was a perfectly proper speed for him to be travelling on that road and at that time. If a vehicle was travelling at that speed and if the crop sprayer pulled out at the moment when the motorcyclist was approaching at such a speed, a collision was inevitable. In those circumstances it is submitted that there was a clear duty on the First Defendant to take such steps as would prevent an accident.
34. The various ways found by the judge in which it could have been avoided, it is submitted, were all sensible ways. The red triangle if placed on the road would give warning of some problem ahead and would have caused the claimant to slow down earlier and thus the accident would have been avoided. In the same way, switching on the flashing lights on the vehicle and sounding the horn from the moment when the vehicle set off so that there was a continuous noise coming from it, together with the flashing of headlights at the same time would inevitably have alerted the motorcyclist to the dangerous situation that he was approaching. In those circumstances it is submitted that this clearly was an accident that was caused by the fault of someone, that it cannot be said that the claimant was at fault in travelling at what was a reasonable speed in the circumstances and, therefore, the fault must lie with the First Defendant for not taking appropriate steps.
35. Counsel went so far as to submit to us that it was negligent to leave that junction at all, although no such allegation had been made below. It had, however, been submitted below, notwithstanding the lack of any pleading, that an alternative route could have been chosen avoiding this junction. It is submitted that there was enough evidence before the judge for him to conclude that this was such a dangerous junction and the vehicles were so unusual that really there was a necessity to find a safer and more suitable route.
36. I start my consideration of those submissions by considering the initial conclusions of the learned judge, firstly, that this was an unusually dangerous junction and bend, and, secondly, that there was something particularly out of the ordinary about the vehicle, the crop sprayer, with its trailer attached. Neither of those conclusions I find capable of being sustained. We have had the same opportunity as the judge to see the photographs at the scene. Looking at those photographs, I can find nothing in any way which would suggest that there is something wholly out of the ordinary about this particular road and the junction where the accident happened. It seems to me that it is exactly that the road is a typical small unclassified undivided road to be found in the country. Frequently on such a road one will come to bends where one is not sure what is going to be around the corner. Even if once cannot anticipate a junction, one can make no safe assumption as to what lies ahead. There may be a farm gate into a field from which traffic might be emerging or it may be almost any sort of hazard. For these reasons, I do not consider that the judge started from the right point in considering this as an exceptionally dangerous corner.
37. Equally, it seems to me, wrong to ascribe to this particular vehicle some characteristic quite out of the normal for a road of this kind. The vehicle was a typical crop sprayer pulling, as is often the case, a trailer behind it. The dimensions of such a vehicle may be quite large but it is no more than one frequently encounters on country roads. Those who are farming have to take their machinery from one place to another - a crop sprayer, harvester or whatever - and one frequently encounters vehicles of this sort of size and dimension sometimes pulling trailers, as was the case here, on roads of this kind.
38. I do not think that in the circumstances of this case there is anything about this vehicle that would enable one to say that the particular nature of this vehicle was such that in some way some wholly exceptional step had to be taken by the driver of the vehicle. One had here a situation frequently to be encountered on country roads where signs and the markings of the road may not be the same as one anticipates on major roads or roads in built-up areas. A prudent road user has to anticipate the probability of coming across large vehicles quite unexpectedly. The onus in such circumstances, in my judgment, is very much upon a driver, driving on such a road, particularly one who does know the road very well, to drive in such a way that he will not be taken by surprise by what he finds round a particular corner.
39. So far as the particular allegations found by the judge, I accept the submission made on behalf of the First Defendant that having to stop the vehicle and walk down the road and place a red triangle is quite unrealistic in all the circumstances. As I have already indicated, the situation here was not something out of the ordinary. I can never remember or think of an example where any driver has done what has been described as necessary in the circumstances of this case, and it seems to me that the description of it has been unrealistic is a perfectly properly one and, therefore, negligence could not properly be found in that regard.
40. Next there is the failure to give a warning by the sounding of the horn or the flashing of the lights. Insofar as sounding the horn is concerned, I do not accept in any way that the sounding of a horn was likely to make any significant difference in the context of this situation. It is not clear to me exactly when it is said that this horn should have been sounded. If the suggestion is that it should have been sounded from the moment when the vehicle started to pull away and kept on being sounded, I again find that to be unrealistic. There did not come a moment, in my judgment, when the driver of the crop sprayer should have thought there was a particular need to sound his horn or that it would have been likely to make the situation safer. The evidence did nothing to establish that the sounding of a horn would be likely to have alerted the claimant earlier that there was a problem ahead of the kind the claimant encountered.
41. So far as using the flashing light on top of the vehicle and the flashing lights on the offside of the vehicle, the first part of the vehicle that the appellant would have seen was the nearside of the crop sprayer. He did not complain that he did see the crop sprayer in good time. If it had had its flashing lights on, it seems to me it would have done no more than spell out that there was a large agricultural vehicle moving along the road at a slow speed. It certainly would not, as is pointed out by Mr Ticciati, in having indicated that there was a trailer which might still be negotiating the corner on its offside of the road. I am satisfied that this allegation could not be a proper basis upon which to conclude that the First Defendant was negligent.
42. So far as the flashing of headlights is concerned, there are two possibilities to consider. The first submitted by Mr Walters on behalf of the claimant is that from the moment when the crop sprayer pulled forward, the headlights ought to have been flashing. It does not seem to me that that in the circumstances this would have made any difference at all. It has to be borne in mind the driver is driving a large vehicle. The driver's task in safely negotiating his turn would be made very much more difficult if he had to be flashing his headlights continuously from the moment he started to pull forward. To make such a requirement of the driver on the off chance that there will be a vehicle coming along at a speed that may cause it to be inconvenienced by the manoeuvre is, I consider, wholly unreasonable. I therefore reject this allegation as a proper ground for finding negligence.
43. The other possibility in relation to the flashing of headlights is that once the First Defendant had pulled out of the road and set off to drive down the road into which he had turned, he should have been looking to the front in order to see whether any vehicle was coming, appreciating that his trailer might still cause some inconvenience to that vehicle. In those circumstances the suggestion that has to be considered is that once he saw the motorcycle he ought to have flashed his headlights then and in that way tried to alert the motorcyclist to the fact that there was a special need for caution. It was pointed out on behalf of the defendants that from the very nature of things, and as was clear from the evidence, the motorcyclist would in any event have seen the tractor before the tractor could see the motorcyclist. There was no investigation at all of exactly what difference it would have made to the claimant's appreciation of danger or of his opportunity to avoid the accident if at this late stage the headlights had been flashed. On the evidence it is not passible to conclude that such a failure was unreasonable on the part of the First Defendant, or that it would have prevented the collision. Again I can see no proper basis for a finding of negligence in that regard.
44. The final allegation is the failure to take an alternative route. It is submitted by Mr Waters that if the Court were to conclude that the evidence had not properly addressed this matter and that the judge was wrong to reach the provisional conclusion that he did that an alternative route ought to have been taken then that is a matter that ought to be sent back to the lower court for re-trial. Looking at the file, as we have been able to do in some detail and appreciating the starting point and as appears from the evidence of the First Defendant, the place to which he was going it seems clear that the route that he took was the obvious route to take. There were other routes undoubtedly significantly longer that could have been taken. It would not in any way have avoided the need to go down roads very different from Butterstocks Lane and in any event there would have been a need to go along Countryman Lane. There is no evidence that was put before the Court that would have enabled the Court to conclude that some other route was in fact safer than the route taken by the claimant.
45. On that basis I do not find that the judge could reach the conclusion that he did in respect of an alternative route. The question arises whether in some way this should be further investigated. That is dependent upon whether one considers that the junction in question was of a sufficient degree of abnormal danger to justify a conclusion that there should have been a search for and a consideration of some different route. As I have already indicated, I do not believe that this junction was particularly out of the ordinary for country roads. Inevitably going along a road of this nature hazards will be met and the presence of another vehicle will add to the hazard. Nothing on the material was before the Court, or that realistically could be put before the Court, would in my judgment enable one to reach a conclusion that the very decision to go by this route was a negligent decision. For those reasons not only would I conclude that there was no negligence established before the trial judge, I would also hold that there is no proper basis upon which a re-trial could be ordered.
46. Those findings effectively deal with the appeal. It is necessary simply to say a word about the allegation of excessive speed laid against the claimant. In my judgment, however one looks at the precise findings as to distances and speeds, the inescapable conclusion is that this motorcyclist was simply approaching this corner far too quickly, so quickly that if there was a hazard around the corner he was going to be embarrassed by it and unable to deal with it. That, in my judgment, was the cause of this accident. If I had reached a different conclusion as to the negligence of the First Defendant, I should unhesitatingly have concluded that the substantial cause of the accident was the speed of the approach of the motorcyclist. However, I can find no proper basis for concluding that the First Defendant was in fact negligent and, accordingly, I would allow this appeal and set aside this judgment.
47. LORD JUSTICE TUCKEY: I agree.
48. LORD JUSTICE PILL: I also agree. It has been alleged there were precautions which the driver of the crop sprayer could have taken and that the failure to take them was negligent and causative of the accident. I agree with Lord Justice Kay that, applying an appropriate standard, the failure to take the precautions did not amount to negligence in the circumstances of this case.
49. I also agree that the case should not be remitted for a re-trial of the alternative route argument, firstly because no explanation has been given as to why any evidence, which it was appropriate to call, was not called at the trial; secondly, it is not reasonably arguable in any event that the case could be determined in the claimant's favour on the alternative route basis. I agree with the reasoning of Lord Justice Kay on that question.
50. In deference to the arguments of Mr Waters who has said all that could be said on behalf of the claimant, I consider what was, in my judgment, the cause of this accident. I agree with Mr Waters that it was not an inevitable accident. Mr Waters' case is that the claimant could not reasonably have anticipated or contemplated that a slow-moving agricultural vehicle would be across his path. As against that, he submits, the defendants ought reasonably to have anticipated and contemplated the approach of a vehicle at the bend and the junction at 45 miles an hour. That was the speed at which the judge found the claimant was approaching and his finding of fact is not challenged.
51. This was the D 116 road which could fairly be described as a lane. It is in a quiet rural area of Sussex. It is not the direct route between settlements of any size. The claimant was approaching a bend. Ahead of him was a length of road which he could not see on his side of the road. This was an agricultural area and it was the height of summer. The presence of slow-moving agricultural vehicles such as crop sprayers or other large and long agricultural vehicles ought reasonably to have been contemplated in an area such as this and at this time of year; that and other obstructions which are on occasions found on country lanes.
52. The claimant should have been riding his motorcycle within the limits of his visibility. His approach to the question of speed is indicated by a series of answers he gave in the course of cross-examination. He was asked about a right-hand bend which he had already passed. The exchange is as follows:

"This was a bend quite a way before the left-hand gradual bend that I was to approach and have collision.

Q. Except the accident bend was a left-hand bend, was it not?

A. That is right. This statement is talking about a bend a lot earlier. [That is a reference to a pre-trial statement.]

Q. Exactly. Yes. And would it be fair to say that when you come out of that blind right-hand bend you would have picked up speed again before you got to the next one?

A. The road did straighten out, so, yes, I would have, I would have picked it up. There is no point in pottering along on a straight road that is out in very clear visibility at 30 when you are allowed to do 60.

Q. And you might have got back up to 60 before you got to this the next bend?

A. I may have done. I may well have done, yes. Yes, the bend would have been, I would have ridden to the ability of the road and the bike.

Q. You say the ability of the road -- this was a road you did not know, was it not?

A. Yes, but it is visibility and it was a very hot day. The road was sticky and so were my tyres, so there was plenty of grip. A hot sunny day. The best weather conditions you can ride in, really."

53. It was that approach to the question of speed which led the claimant to approach the bend much too fast. It is fair to say that he reduced speed from the figure of 60 mentioned to one of 45 miles an hour. In the circumstances that was, in my judgment, too fast. Those who take pleasure rides along the country lanes in Sussex should not approach bends such as this at a speed of 45 miles an hour. In my judgment it was that speed which was the sole cause of this accident.
54. It is of course highly regrettable that unfortunately the claimant has suffered serious injury as a result of the impact he sustained, but for the reasons I have given and for the reasons which Lord Justice Kay has given, this appeal must however be allowed and the claimant's claim fails.
(Appeal allowed with costs subject to detailed assessment; claim dismissed; interim payment to be paid to the defendant; leave to appeal refused)