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 TORQUAY & NEWTON ABBOT COUNTY COURT
(Mr Recorder Brock QC)

		Royal Courts of Justice Strand London WC2 Tuesday 15th May, 2001

1. LORD JUSTICE MAY: This is a renewed application on behalf of the first defendant for permission to appeal against the decision of Mr Recorder Brock QC on 8th February 2001 in the Exeter County Court. It was a claim by Mr Pittkin against initially three defendants, but one of them dropped out. He unfortunately had a motorcycle accident on 5th March 1997 when he was travelling slowly on his motorcycle on a minor road called the C90 in or near Chudleigh Knighton in South Devon, and when he sustained unfortunately quite serious injuries to his left knee and leg.
2. The cause of the accident was found by the Recorder (and this is not challenged) to have been slippery clay on the road, and the questions in general terms were: where had the clay come from and whether one or both of the two remaining defendants were negligently responsible for its presence on the road. The first defendant Watts Blake Bearne Plc I shall refer to as "WBB". The second defendant are a subsidiary of English China Clays and I shall refer to them as "ECC".
3. This all happened in the area of Bovey Tracey and there is a lot of clay deposits and quarries there or thereabouts, many of them operated by WBB or ECC. The C90 is a little road that joins with the B3193 at a place called Rixpark Corner and travels in a generally north-westerly direction towards and eventually over the A38 trunk road running south from Exeter. Along that stretch of road ECC have a Newbridge works on the left as you travel north-west, and WBB have what is referred to as Clay Lane works on the right. The accident occurred quite close to the A38, as Mr Pittkin was travelling, as I say, in a north-westerly direction up a slight incline. He was aware that the road was slippery and had slowed down to quite a slow pace, something no more than, and perhaps less than, 20 miles an hour. Nevertheless he slipped and was injured.
4. The Recorder set out some relatively uncontroversial evidence, to some of which I shall return. He then asked and answered a number of questions which were issues. The first issue was whether there was clay on the road at the scene of the accident, and the Recorder decided that there was. There were other possibilities arising out of the evidence, but it is not necessary now to look into that. The Recorder then asked whether the clay caused the accident and he was satisfied that it did. He found that the wet clay caused Mr Pittkin's motorcycle to slide over and caused his injuries.
5. I should perhaps have said that this was taking place at 9.45 in the evening of a March day. He then asked the question: how did the clay get there? And he decided, in the light of evidence which he had already set out, that he had no doubt that the clay was deposited on the road by the defendants' vehicles, whether from the wheels or the loads does not matter. There was, he said, no other credible explanation for its presence and he then said, in a single sentence:

"It is accepted that if I find that the Defendants were responsible for the presence of clay on the road liability in negligence must follow."

6. I do not think Mr Porter challenges that, although he does have a challenge on appeal in relation to the first defendant as against the second defendant. The one sentence basis, as I understand it, for the decision that if the defendants were responsible for the presence of clay on the road negligence must follow, was that they had deposited it there off lorries by one means or another, they must have known that it was there and they had an obligation either not to deposit it in the first place or to clean it up afterwards if it were deposited.
7. The Recorder then asked the question whether there was contributory negligence and decided that there was not. He then asked his final question: how should liability be apportioned between the defendants? Of that he said:

"This is a more difficult question. However, it has been made easier to answer by the consolidated efforts of Mr Hayes and Mr Basham. I have no doubt that the clay was made up of deposits from vehicles owned or controlled by both Defendants. I have to weigh up the number of vehicle movements, the distance travelled by the vehicles before they reached the C90 for the purpose of considering to what extent clay may have dropped from the wheels and the difference between loaded and unloaded vehicles and the nature of the loads. I also bear in mind that a number of witnesses specifically identified clay on the road outside ECC's Newbridge Quarry."

8. In the end he had to make a judgment, and he found that ECC were liable as to 60 per cent and WBB as to 40 per cent.
9. The burden of this application advanced by Mr Porter is that the Recorder ought not to have attributed any liability to the first defendants, WBB.
10. It is first, I think, necessary to examine part of the evidence upon which it is clear that the Recorder relied in making the decision that he did. He described how each of the defendants operated by getting the clay in raw form from clay quarries and transporting it to processing plants elsewhere where it was processed, or alternatively transporting the processed clay to customers. He then set out, and to a certain extent made decisions about, vehicle movements on the day in question and on page 30 of the bundle he had this to say about the vehicle movements for which WBB were responsible. Firstly, he said:

"... in the morning 3 lorries based at Cornwood near Plymouth did 3 round trips each from Cornwood with raw clay for shredding at Preston Manor. This means that 9 lorry loads of raw clay passed along the length of the C90 between Overbridge and Rixpark Corner and 9 lorries went back empty along the same route.

Secondly, also in the morning, 6 lorries based at Preston Manor did 2 round trips each up to North Devon Quarry and returned with loads of raw clay for processing at Preston Manor. There was some dispute as to whether these lorries would have gone over the C90 at all: Mr Hayes, the transport manager at WGB in 1997, said in evidence that he would have expected them to go along the B3193 via Bellamarsh Barton avoiding the C90. Mr Thompson, a contract lorry driver who regularly drove for WBB, said in paragraph 4(a) of his statement (not challenged in cross-examination) that the normal route from North Devon Quarry was via Drum Bridge from Moretonhampstead and did involve going over the C90. He said this was done to avoid a weighbridge in Exeter. Mr Hayes acknowledged in evidence that there was such a weighbridge but did not accept that this route was normally followed. I find on the balance of probabilities that some, and I shall assume half, of these lorries did go over the C90. So this means that 6 lorries went out empty along the length of the C90 between the Rixpark Corner and the Overbridge and 6 lorry loads of raw clay came back along the same route.

These movements appear from Mr Hayes' analysis of 148.

Thirdly, in the afternoon, about 12 loads of raw clay went from the Clay Lane quarry on the C90 to Preston Manor for shredding. See 149. That means that 12 empty lorries came up from Preston Manor and 12 lorry loads of raw clay went down. But these movements would only have gone over part of the relevant length of the C90 and would not have involved that part of the road between Clay Lane Quarry and the Overbridge.

Apart from these movements there were also loads being collected from storage bays along the B3193 and taken to Preston Manor, but these did not involve the C90. Mr Hayes said that there would also have been other deliveries of various kinds to and from Preston Manor but in my view these are only of peripheral importance.

Finally, page 148 confirms that a Johnson roadsweeper purchased by WBB in about 1993, the specification of which can be seen at 246-264, was in operation that day. It is not clear whether it was actually used on the C90 on that day. Mr Hayes said that it was in regular use on the B3193 but only on occasion on the C90."

11. The Recorder then went on to relate and make decisions about lorry movements by ECC, whose generality is that clay lorries went along the C90 on that day in quite large numbers and he concluded this part of his judgment by saying, at the foot of page 32:

"It follows that the C90, a narrow and winding minor road, carried a very high volume of clay traffic on the day in question."

12. It is, in my judgment, perfectly evident that what the Recorder found was that the clay on the relevant part of the C90 which had been the cause of Mr Pittkin's accident was a mixture of clay likely to have been deposited by both the first defendant and the second defendant's lorries. It seems to me, subject to matters which Mr Porter has raised which I shall refer to in a moment, that there was ample evidential material available for the Recorder to make that finding.
13. What however Mr Porter submits is that the Recorder failed to consider whether the clay came from the first defendant's lorries or the second defendant's lorries and that he should have found that the relevant clay upon which Mr Pittkin slipped came exclusively from the second defendant's lorries. I have to say that Mr Porter's submission by silence omits the possibility that the clay came from both the first defendant's and the second defendant's lorries. But nevertheless the burden of his submission is that the Recorder ought to have found that it was only ECC's clay. The main basis for that submission is evidence by Mrs Pittkin, to be found on page 34 in particular of the transcript, to the effect that she first noticed clay on the road outside Newbridge and, although she is not absolutely clear about this, that the clay came from the second defendant's Newbridge works. Mr Porter then refers to Mr Thompson's evidence in cross-examination to the effect that generally speaking at the entrance to the Newbridge works clay was habitually quite thick, caused it may be among other things, by lorries coming out of the Newbridge works and turning right, that is to say away from the scene of the accident, but travelling across the road and therefore depositing clay across the whole width of the road. This might then be taken on the wheels of other lorries up the road and to the point where the accident occurred.
14. In my judgment, whilst undoubtedly there was this evidence, it seems to me that it does not necessarily falsify the Recorder's finding of fact. This is an attempt to bring before the Court of Appeal a pure finding of fact made by the Recorder who heard and considered the evidence. It is not as if the Recorder ignored the evidence to which Mr Porter refers because on page 38 of his judgment he specifically says, as I have already read out, that he also bore in mind that a number of witnesses specifically identified clay on the road outside ECC's Newbridge quarry. So the Recorder took it into account. I do not think there is any basis for saying that the finding that the Recorder made was evidentially unavailable to him. On the contrary, it seems to me that he has set out very carefully the evidential basis for reaching the conclusion that he did. Although it is absolutely correct that his finding of negligence is encompassed in a single sentence, if you read the judgment as a whole it is in my view perfectly clear how he reached that conclusion. The conclusion in my view was available to him on evidence to which he referred.
15. In those circumstances, it seems to me that the first defendant has no reasonable prospect of persuading the Court of Appeal otherwise, and on this part of the application I refuse permission to appeal.

(Mr Porter made further submissions)

16. LORD JUSTICE MAY: Earlier this morning I refused permission to the first defendant, WBB, to appeal to this court on the apportionment of liability as between themselves and the second defendant. There is an additional application now before me for the first time relating to the costs.
17. The relevant part of the costs order which the Recorder made was that the second defendant, ECC, should pay 70 per cent of the claimant's costs on the standard basis and that WBB, the first defendant, should pay 30 per cent of the claimant's costs throughout on a standard basis. He made no order upon Mr Porter's application that the second defendant should pay all or some of the first defendant's costs. The only adjustment that he made in favour of the first defendant was the difference between, 60 per cent and the 40 per cent which was the apportionment of liability on the one hand and 70 per cent and 30 per cent which was his award of costs to the claimant.
18. The application derives from pre-trial Part 36 offers. On 5th January the claimant offered to compromise liability by accepting 70 per cent liability and forgoing 30 per cent. On 11th January the second defendant offered to compromise on the basis that the claimant should be responsible for one-third, they should be responsible for one-third and ECC should be responsible for one-third, and they offered that each of those two defendants should pay half the claimant's costs.
19. That offer was misunderstood by the claimant as coming from both relevant defendants, and the claimant, upon that misunderstanding, but it does not really matter, was prepared to accept the offer and his solicitors went so far as to prepare a consent order. However, the offer had not come from both defendants but only from the first defendant. On 19th January the second defendant rejected that basis of compromise.
20. In the result the claimant did better because he resisted contributory negligence entirely. As between the two defendants, there was a strong argument that the first defendant did better than that offer because the effective offer as between the two defendants was that each of them should pay half of what was payable to the claimant. In fact the second defendant had to pay not one-third but 40 per cent, a little bit more if that is how one analyses it, but the second defendant had to pay substantially more; instead of 33 per cent they had to pay 60 per cent. The more important point, perhaps, than that detail, is that everybody was prepared to settle on that basis except the second defendant, and in the event the second defendant very arguably did much worse. Worse or not, they turned down an offer and thereby prevented the compromise and caused a trial.
21. Costs appeals are not easy, and permission is not often granted in relation to costs because costs are very much in the discretion of the trial judge. However, Rule 44.3(c) requires the court to have regard, in appropriate circumstances, to any payment into court or admissible offer to settle made by a party which is drawn to the court's attention. This offer was drawn to the court's attention and the Recorder considered it. But it seems to me at the least reasonably arguable that an adjustment in the second defendant's favour, which was effected by the 70 per cent/30 per cent split of the claimant's costs but which did nothing at all about the first defendant's costs as against the second defendants, did not adequately reflect the merits to be derived from the second defendant's rejection of the letter of 11th January.
22. I think this is a case which does merit examination by this court. Accordingly for that reason I grant permission, but as Mr Porter will appreciate that permission is limited to the costs point alone.
ORDER: Application for permission to appeal granted on the costs point alone; costs of the application relating to the costs appeal reserved to the court who hears the appeal. (Order not part of approved judgment)