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 EXETER COUNTY COURT
(MR RECORDER BROCK QC)

		Royal Courts of Justice Strand London, WC2 Wednesday, 9th October 2002

1. LORD JUSTICE MAY: This is an appeal in a Road Traffic Act case from the decision and judgment of Mr Recorder Brock QC sitting in the Exeter County Court on 26th October 2001. He had to determine liability only in what, as will appear, was an unusual case. He gave judgment for the claimant, Mr Colin Purdue, for damages to be assessed. He rejected the defendant's case that they were not negligent. He rejected the defendant's subsidiary case that Mr Purdue had by his own negligence contributed to the accident in which he was severely injured.
2. Robert Walker LJ, as he then was, gave permission to appeal on one of three grounds of appeal, that relating to contributory negligence. He refused permission to appeal on two grounds relating to liability, but he directed that if the application was renewed on those grounds it should be heard on notice with the appeal to follow. That is what has happened today. So there is an application for permission to appeal on the first two grounds and the appeal on the third ground.
3. Mr Purdue was driving home at about 7.30 in the morning of 27th June 1999. He had been working overnight in Barnstaple. He was driving from an estate to the south of the A361 Braunton Road in Barnstaple. He came out into Pilland Way and arrived at a point where there are traffic lights at the junction with Braunton Road. He came to a halt at the traffic lights which were red in front of him.
4. Meanwhile, the defendant's fire appliance was answering a call from premises in Braunton and had travelled from the fire station, which is a little way up some other roads away from Braunton Road, into Braunton Road. It was travelling towards Braunton Road in the direction of the traffic lights at which Mr Purdue was stationery. There is quite a long stretch of straight road along which the fire engine was travelling. It had, so the evidence was, turned into Braunton Road from Fair View, and in doing so had sounded its audible wailers because that was a blind turning.
5. Braunton Road, soon after that turning, becomes a dual carriageway, and there is on the left, just before it becomes a dual carriageway, a Texaco garage, some 450 or 500 metres from the traffic lights at which Mr Purdue was stationery. The next landmark down that road, and rather closer to the traffic lights, perhaps 250 metres away, is Mole Valley Farmers. That is also on the left. Soon after that on the left there is an hotel or motel with a service road to it going left, the service road being in the order of 110 metres from the traffic lights.
6. The fire engine, driven by Firefighter Worth and with Leading Firefighter Patterson sitting beside him, was travelling at 50 miles an hour, slowing down as it approached the traffic lights. To put it neutrally for the moment, the traffic lights were or became red against the fire engine in Braunton Road as it was approaching. They became red because Mr Purdue in his motor car had passed over an induction loop in his road, Pilland Way, thereby setting a mechanism in process to give him a short period of green light in his direction. The lights turned green in Mr Purdue's favour. He proceeded to drive across those green lights and into the path of the fire engine. The fire engine was using all three of its sets of flashing lights, two blue and one set of yellow or clear flashing headlights, and had slowed down somewhat to a speed of perhaps 30 mph as it approached the traffic lights, having pulled as a safety precaution towards the centre of its side of the dual carriageway.
7. Firefighter Worth and Leading Firefighter Patterson assumed, and no doubt believed, that Mr Purdue had seen them and would stop to let them pass. So the fire engine was driven across the red traffic lights. Unfortunately, Mr Purdue had not seen them. He did not stop. There was a collision in which he was badly injured, most unfortunately.
8. The traffic lights had three phases. The first and no doubt most often in use has green lights in favour of traffic travelling in each direction in Braunton Road and a red light against traffic wishing to emerge from Pilland Way. There is also a red light against drivers coming from Braunton Road wishing to turn right across the carriageway in which the fire engine was travelling and into Pilland Way. Phase 2 had red lights against the carriageway of Braunton Road in which the fire engine was travelling and also against Pilland Way for drivers emerging from it; but green in favour of drivers wishing to turn right from Braunton Road into Pilland Way. Phase 3 had red lights in Braunton Road in each direction and a green light or green lights in favour of a driver wishing to emerge from Pilland Way to turn right, as Mr Purdue was intending to do. A photograph which we have indicates that the traffic lights which he was able to look at included one on his left-hand side at or close to the white line at which he was stationery, and more importantly perhaps, a second traffic light on the far side of Braunton Road, immediately ahead of him.
9. The claim essentially alleged that the driver of the fire engine was negligent, firstly for proceeding to cross red lights when it was not safe to do so and, secondly, for proceeding, albeit in an emergency service vehicle, to cross red lights when it was not safe to do so without using the fire engine's audible wailer system. I shall return later in this judgment to slightly greater elaboration of that case.
10. The pleaded defence is a useful place to find the essence of the defendant's case. It reads as follows:

"The claimant had a clear and uninterrupted view of the appliance on and throughout its approach to the junction.]

The blue beacons, the front repeater blue lights and the headlamp flashers on the appliance were all illuminated and operating.

The claimant's car was stationary at the lights as the appliance approached. Moreover, it did not move off when the lights turned to green in the claimant's favour (having turned to red for the appliance) or indeed until the appliance was on the point of entering the junction.

Firefighter Worth had no reason whatever to suppose or believe that the claimant was unaware of the approach of the appliance or had any intention of entering the junction until the appliance had passed. He proceeded on to and across the junction, because he was satisfied that the claimant was well aware of the appliance and was waiting for it to pass. In the circumstances, it was entirely reasonable for him to be satisfied. For the same reason, he did not operate the wailers on the appliance.

Leading Firefighter Patterson, who was in charge of the appliance and had independent control over the audible warnings, equally had no reason to suppose or believe either that the claimant was unaware of the approach of the appliance or had any intention of entering the junction until the appliance had passed. He too was satisfied that it was safe for the appliance to proceed. Again, this was entirely reasonable in the circumstances. Accordingly, he neither instructed Firefighter Worth to stop or slow down, nor switched on the wailers."

11. It will be seen that central features of the defence are, firstly, that the claimant, Mr Purdue, did not move off from the lights in his road when they turned to green in his favour but waited apparently for the fire engine to pass; and, secondly, that it was reasonable in the circumstances for the two fire officers to conclude that it was not necessary to activate the wailer as they approached the junction.
12. There are relevant statutory provisions and other guidance to which it is necessary to refer and to which the recorder referred in his judgment. It is convenient to read from paragraph 10 of the judgment:

"The Traffic Signs And General Directions Order 1994, Statutory Instrument 1994 No 1519, provides exemptions and special provisions in relation to the Road Traffic Act 1988. In particular, under the heading 'Significance of Light Signals', Regulation 33(1) reads as follows:

The significance of the lights signals prescribed in paragraphs 2 and 3 of Regulation 30 and in Regulation 32 shall be as follows:

(a) Except as provided in subparagraphs (b), (f) and (g), the red signal shall convey the prohibition that vehicular traffic other than tram cars shall not proceed beyond the stop line.

(b) When a vehicle is being used for fire brigade, ambulance or police purposes and the observance of the prohibition conveyed by the red signal in accordance with subparagraph (a) would be likely to hinder the use of that vehicle for the purpose for which it is being used, then subparagraph (a) shall not apply to the vehicle, and the red signal shall convey the prohibition that that vehicle shall not proceed beyond the stop line in a manner or at a time likely to endanger any person or to cause the driver of any vehicle proceeding in accordance with the indications of light signals operating in association with the signals displaying the red signal to change its speed or course in order to avoid an accident."

In other words, to put it in the vernacular, emergency services vehicles are not prohibited from proceeding across red traffic lights. They may do so if, but only if it is safe to do so.

13. There were in evidence service guidance notes promulgated by the defendants to their staff. These included:

"(b) Traffic lights.

(i) A red traffic light may be treated as a 'Give Way' sign when observance would hinder the purpose for which the vehicle is being used and provided that no danger is caused to other road users and that the driver of another vehicle is not caused to change speed or course to avoid an accident. Taking advantage of this exemption is likely to bring a Devon Fire & Rescue vehicle into conflict with other road users including pedestrians. This exemption also applies to the red M-Way stop lights mounted on matrix type signals.

(ii) Such an operation is EXTREMELY DANGEROUS and the normal practice must be to proceed only when it is safe to do so using warning horns or bells as well as warning lights while so doing.

(iii) The aim of the driver must be to reach the incident safely without causing injury to the crew or other road users or damage to the appliance or other vehicles."

14. The guidelines also said that audible warnings may be used between 0700 hours and 2330 hours and only in exceptional circumstances at any other time. As a matter of fact the accident occurred within the time when audible warnings were permitted.
15. The recorder referred firstly to the evidence of a Mr Bradford who was a traffic engineer. He gave detailed evidence about the traffic lights, their phases and the result of traffic passing over induction loops in the road. The recorder reached this conclusion in paragraph 27 of the judgment. He said this:

"It follows that if Mr Purdue's car passed over the loop on Pilland Way and triggered phase three, the lights facing the main Braunton Road would turn amber; there would be an inter-green phase of five to seven seconds before the Pilland Way lights turned green; and there would then be an eight second period during which those lights would remain at green, a total of 13 to 15 seconds in all."

As I read the judgment, that analysis was on an assumption that at the time of this accident phase 2 was not activated; in other words, that the lights went straight from green in favour of Braunton Road to green in favour of the road in which Mr Purdue was travelling, and that there was not the intervening period during which they were green in favour of a vehicle wishing to turn right out of Braunton Road. It seems to me that, although there may not have been a literal finding to this effect, that was a necessary finding on the evidence, because there was clear positive evidence from one at least, if not more, of the firefighters that no other vehicle was involved or around at the time. Indeed, it is an extraordinary feature of this most unfortunate accident that Mr Purdue's car and the fire engine were the only vehicles at this crossing in clear daylight on this straight road with clear visibility.

16. The recorder considered in great detail both the written and oral evidence of the three firefighters, Mr Patterson, Mr Worth and Mr Davis. He set out not only passages from their witness statements but also from their cross-examination and other oral evidence. I am not going to refer to that in detail, but it is perhaps pertinent just to summarise some of it. The important points included that each of the three firefighters said that they positively saw Mr Purdue looking straight ahead of him and they positively saw that he did not look in their direction. They each said that they saw his car stationery at what they supposed at first was a red traffic light. They gave varying accounts of the distance at which they saw that and varying accounts of the distance at which they observed that the traffic light in Braunton Road was red against the fire engine as it proceeded. The recorder made findings about that. Mr Eklund has made submissions in relation to those findings. I shall return to that later in this judgment.
17. On page 22 of the recorder's judgment he made some findings of fact. They were as follows. Paragraph 44:

"I was invited by counsel to make various findings of fact for the purpose of determining liability in negligence. The uncontested facts set out above should be taken as read. In addition, I make the following findings of fact.

(1) The fire engine was travelling at an average speed of 40 miles an hour in its passage over Braunton Road. Mr Worth may have accelerated to 50 miles an hour at some point. But I am satisfied that he took his foot off the accelerator after the hotel slip road, thus engaging the automatic retarder, and slowed to about 30 miles an hour at the junction. Accordingly, 40 miles an hour seems to me to provide a fair working average. As I have already observed, that was within the speed limit.

(2) The next question concerns the time at which the fire fighters saw the red lights at Braunton Road. Messrs Patterson, Worth and Davis claim to have seen the lights at red at various stages between Mole Valley Farmers, about 350 metres from the junction, and the hotel slip road, about 110 metres from the junction.

As I have already set out above, Mr Bradford's evidence establishes that the interval between the Braunton Road traffic lights turning amber at the end of phase one and the Pilland Way lights turning red and amber at the conclusion of phase three would be between 13 and 15 seconds. It is accepted in the statements of case that Mr Purdue crossed the junction on a green signal. It follows that if phase three was activated by Mr Purdue's car immediately following phase one, the Braunton Road lights would only be red for between 13 and 15 seconds before the Pilland Way lights went red again, namely five to seven seconds of inter-green time and eight seconds while the Pilland Way lights were green.

If the fire fighters saw the lights at red 350 metres from the junction and the lights remained red until the fire engine crossed the junction, a fire engine travelling at about 40 miles an hour would take about 20 seconds to reach the junction."

I pause for the moment, firstly to say that there is no submission that the calculation of about 20 seconds was not on the evidence correct; and, secondly, that whilst the recorder does not spell it out, it would have to follow from that that, if the fire fighters saw the lights at red 350 metres from the junction, and if they were travelling at an average speed of 40 mph, the light would have been green in their favour again by the time that they reached the lights themselves, since the 13 to 15 seconds is substantially less than the 20 seconds that it would take for them to cover the 350 metres.

18. The judge went on:

"Accordingly, Mr Hillier suggested that phase two must in some way have been activated prior to phase three in order for the Braunton Road lights to have been red for long enough. However, both Mr Worth and Mr Patterson, who were recalled yesterday to deal with this question, were sure that there had not been any other vehicles on the road capable of activating phase two that morning.

In the event, I do not find it necessary to determine this question. Phase two may have been activated by an unseen vehicle. The fire fighters may have been mistaken in the time and distance during which they saw the Braunton Road lights at red. What is important is that they registered the fact that the lights were red against them at least six seconds before they crossed the junction, assuming that they registered the red lights at the latest when they passed the hotel slip road 110 metres before the junction.

I am satisfied that Mr Purdue pulled up at a red light on Pilland Way. This is supported by all the witnesses and, in particular, by what Mr Patterson and Mr Davis said at paragraph 19 of their respective statements as explained in cross-examination.

It is accepted, and I so find, that Mr Purdue moved off and entered the junction at a green light.

The question then arises as to whether Mr Purdue moved off as soon as the lights turned green in his favour or at a later time during the eight second green period in phase three.

On the balance of probabilities, I find that he moved off as soon as the lights turned green. This conclusion is consistent with the evidence elicited in cross-examination from Mr Worth and Mr Patterson.

I find that the fire fighters saw Mr Purdue's car as they were passing the hotel slip road about 110 metres from the junction. In this respect I prefer the evidence of Mr Worth and Mr Davis to that of Mr Patterson who thought he saw the car earlier.

I find that Mr Purdue looked straight ahead of him at the far traffic lights shown facing him in the photograph at page 145 of the bundle throughout the period during which he was stationary at the junction. The evidence is clear from all the witnesses that he never looked to his left or right throughout the run up to the collision.

I find that Mr Worth and Mr Patterson made a conscious decision that Mr Purdue had seen the fire engine but were not and could not be sure in their minds that he had seen them. I refer in particular to the language used by them in cross-examination. Mr Worth speaks of having 'assumed' and 'made a calculation'. Mr Patterson speaks of having made a 'judgment'. They base their judgments on the time during which Mr Purdue had been stationary at the junction. But those decisions depended on assumptions that they were not in a position to make with any certainty about the state of the lights which he, but not they, could see.

More importantly, both of them positively confirm that Mr Purdue had not looked in their direction and made eye contact, let alone gestured or otherwise indicated that he was letting them through. Such eye contact might have justified their judgments. Without it they were taking an unacceptable degree of risk."

Those were the recorder's central findings of fact. And having found them he proceeded to consider the case of negligence against the defendants. He said this:

"With considerable regret, I am firmly of the view, and I so hold, that Mr Worth was negligent in driving across the junction against a red light in all the circumstances at 30 miles an hour. He slowed down to 30 miles an hour from 40 miles an hour and in so doing must, subconsciously at least, have recognised the possibility that Mr Purdue might pull out. Since I have found that Mr Worth was not and could not be sure that Mr Purdue had seen him and was waiting for him to pass, the speed at which Mr Worth crossed the junction was excessive in all the circumstances and negligently so.

I also believe, and equally firmly hold, that Mr Worth was negligent in failing to activate the wailers. Although I have held that he and Mr Patterson had a discretion in this respect, the position was straightforward. The time was outside the proscribed nighttime period provided by paragraph 3(d) of the Service Guidance notes. He had seen the Sierra. He had seen Mr Purdue. He had noted that Mr Purdue was looking straight ahead and not at them. He had time to activate the wailers bearing in mind that it was a simple operation and that he had at least six seconds to do so. He accepted as much, in that he acknowledged that he could have done it but made a conscious decision not to do so.

I hold, with equal conviction, that Mr Patterson was also negligent in failing to activate the wailers, essentially for the same reasons. ..."

The recorder was satisfied that a combination of the excessive speed of the fire engine and the failure to activate the wailers caused the accident.

19. The recorder then turned to deal with contributory negligence. The case for the defendants was that Mr Purdue should have looked to his right before pulling out across the junction. If he had done so, he would clearly have seen the fire engine. The recorder referred at some length to the judgment of Simon Brown LJ in the case of Griffin v Mersey Regional Ambulance [1998] PIQR 44, to which I shall refer later in this judgment. He then said this:

"In the light of that no doubt helpful guidance it follows that Mr Purdue owed a duty of care (and I quote again the relevant passage from page 38 of Griffin) 'beyond that of merely taking reasonable steps to avoid colliding with any vehicle crossing on red which he happened to see or otherwise be aware of.'"

The recorder proceeded:

"What does this mean in the present case? In my view, Mr Purdue had a duty to listen for emergency vehicles. There is no evidence that he did not do so. But, unlike in the Griffin case, there were no factors such as other vehicles, heavy traffic or complex road configurations requiring other acts on his part. He was waiting at a well controlled junction for the lights to change. He had no reason to suppose that a fire engine was approaching out of his line of sight. It was a quiet, early Sunday morning; there was no other traffic about.

In my view, in those circumstances neither the Highway Code nor the principles in Griffin required him to turn and look to his right for danger. If a prudent driver in those circumstances were required to look around rather than rely on the green light, traffic would grind to a halt."

He concluded that he could not attribute any contributory negligence to the claimant.

20. There are, as I have indicated, three grounds of appeal, two of which are the subject of applications for permission. The first ground of appeal is expressed in the appellant's skeleton argument as follows:.

"The judge was wrong to find that the claimant moved off as soon as the lights turned green in his favour. That finding was not supported by and was contrary to the evidence. Further or alternatively, the judge failed properly to consider the evidence of the firefighters as to the point from which they could see the lights were red against the fire appliance, which was inconsistent with the claimant having moved off when the lights turned green in his favour. Further or alternatively, he failed to give any or any sufficient reason for not accepting that evidence or for deeming it to be consistent with the claimant having moved off as he found."

I have already alluded to the interrelationship between the finding of the point in the light phases at which Mr Purdue moved forward and the distance from which the fire fighters first saw the red light against them and from which they observed Mr Purdue looking straight ahead and not looking in their direction. Mr Eklund has referred us to passages in the evidence. The essential argument is that the recorder should have accepted the evidence, in particular from Mr Patterson, to the effect that it was as far away as approximately 350 metres that he observed that the traffic lights were red in Braunton Road against the fire engine. On that basis there would of course be a substantial period of time during which those in the fire engine would, if they were looking in that direction as they said they were, have been able to see Mr Purdue and to see whether he was indeed looking in their direction. The closer to the traffic lights the fire officers saw Mr Purdue and saw that he was looking straight ahead, or, to put it another way, the closer to the traffic lights that the officers saw the traffic lights red against them, the more likely it would be that Mr Purdue did move away from the stop line at the point, or approximately at the point, when the lights turned green in his favour.

21. Mr Eklund has urged that the recorder was wrong in making the findings that he did. I am quite unconvinced by those submissions. There are passages in the skeleton argument of Mr Hillier, which I do not need to read out, which identify parts of the evidence from which it was quite open for the recorder to make the findings which he did. In particular he was entitled to find that the point at which the fire officers observed Mr Purdue was not 350 metres away, but more like the 110 metres that at least one of them spoke of. In addition to that, it seems to me to be highly improbable that Mr Purdue came to a halt, looked at traffic lights to turn green and did not move off at or very soon after they turned green in his favour in circumstances where it is common ground, for whatever reason, that he did not in fact see the fire engine. There seems to me to be no probability or any reasonable explanation why in those circumstances he should have waited. Reviewing the evidence as he did and pointing to those passages in the evidence on which he relied, it seems to me that it was entirely open to the recorder to reach the conclusion that he did.
22. I have also indicated, and it seems to me to be persuasive, that Mr Patterson's evidence to the effect that the lights were already red when the fire engine was some 350 metres away was insecure. The time that it would take for the fire engine to cover that 350 metres was likely to be greater than the time during which the lights were red in Braunton Road against the fire engine. There was no evidential basis for interpolating a phase 2 timing. For these reasons it seems to me that there is no prospect of ground 1 succeeding. I would maintain Robert Walker LJ's refusal to grant permission on that ground.
23. As to ground 2, Mr Eklund re-expressed it helpfully in these terms. He submits that the recorder should have found that it was not negligent for the fire engine to proceed without the wailers sounding. There are two limbs to this submission. The first limb includes the evidence that Mr Patterson saw the claimant stationery from 350 metres away or at least a long way further back. I have dealt with that. The second limb was that the main finding of negligence was a failure to activate the wailers. As to that, Mr Eklund submits that both the fire officers were justified in the circumstances in exercising their discretion not to use the wailers and proceeding through the lights as they did. Each of Firefighters Worth and Leading Firefighter Patterson was able independently to make that decision and did so. He submits that it was wrong for the recorder to find that there was negligence on their part and that the finding was influenced by hindsight. This was, after all, a large red fire engine with a number of clearly visible flashing lights which were there to be seen.
24. In my view, Mr Eklund emphasises part only of the recorder's finding. He found the defendants negligent because their officers failed to activate the wailers. But he also, and incidentally as his first finding, found that Mr Worth was not and could not be sure that Mr Purdue had seen him, and that in the circumstances he had crossed the junction at a speed that was excessive and negligent.
25. In my view, that was an entirely justified finding on the facts. This was a case where Firefighter Worth, the driver of the fire engine, did not give way as the regulations and the Service Guide Notes require. He in fact proceeded to cross red traffic lights when it was not safe to do so. On the finding of fact, which in my judgment is unimpeachable, that Mr Purdue moved off more or less at the moment the lights turned green in his favour, there was no proper basis for the assumption that Mr Purdue had seen the fire engine and was waiting for it to pass. Accordingly, and to put it simply, the driver of the fire engine failed to give way in circumstances where he ought to have done so and where it was unsafe not to do so. He had no proper basis for making the assumption that he made. In addition, it does seem to me to justify the recorder's other conclusion. Since there was no proper basis for the assumption that Mr Purdue had seen the fire engine, the wailers ought to have been activated. I would refuse permission to appeal on ground 2.
26. There remains the third ground relating to contributory negligence on which permission to appeal has been given. The case is that Mr Purdue ought to have looked for and seen the fire engine. Although it had no wailers sounding, it was there to be seen in broad daylight. It was a large red vehicle with three sets of lights flashing and no interruption in view if Mr Purdue had looked or even just glanced to his right.
27. I should refer to a provision of what is now paragraph 194 of the Highway Code. This provides under the heading: "Emergency vehicles":

"You should look and listen for ambulances, fire engines, police or other emergency vehicles using flashing blue, red or green lights, headlights or sirens. When one approaches do not panic. Consider the route of the emergency vehicle and take appropriate action to let it pass. If necessary, pull to the side of the road and stop, but do not endanger other road users."

28. The facts in the case of Griffin, to which the recorder referred and which both counsel have relied on this morning, were very different from those in this case. The Court of Appeal, presided over by Simon Brown LJ, upheld a finding that a driver who had crossed a green light but had collided with a fire service vehicle was 60 per cent contributorily negligent. It seems to me that the following points are usefully to be derived from Simon Brown LJ's judgment in Griffin. Firstly, he quoted from Wilkinson Road Traffic Offences to this effect:

"Where for such a purpose [i.e. an emergency for a fire brigade, ambulance or police vehicle] a red light is disregarded the driver is required, in effect, to treat the red signal as a 'Give Way' sign, i.e. he must not enter the road in such a manner or at such a time as to be likely to cause danger to any other driver on the road or so as to necessitate a change of course or speed by that driver in order to avoid an accident."

Secondly, with reference to a decision of the Court of Appeal called Davis v Hassan [1967] 117 NLJ 72, Simon Brown LJ emphasised that all these cases fall to be decided on their own facts. Thirdly, there is this important passage in his judgment on page 38:

"In my judgment, the general approach of the judge below was entirely correct. He rightly identified the duty upon the defendants' driver crossing this junction against the red light, as a high or heavy one, but equally rightly he recognised a duty of care upon the plaintiff beyond that of merely taking reasonable steps to avoid colliding with any vehicle crossing on red which he happened to see or otherwise be aware of. Rejecting, as I do, the application here of what is suggested to be the absolute rule in favour of traffic crossing a junction on green established in Joseph Eva Ltd v Reeves, it follows that, in my judgment, the appellant's argument that there was no scope here for any finding of contributory negligence fails."

The important passage, as the recorder in the present case emphasised, being the latter part of the second sentence.

Fourthly, Simon Brown LJ emphasised that the nature of the duty owed by drivers crossing on green, in circumstances where emergency vehicles are crossing on red, is illuminated by regulation 33(2) of the 1994 regulations which he quoted:

"Vehicular traffic proceeding beyond a stop line in accordance with paragraph (1) [i.e. lawfully crossing on the green light] shall proceed with due regard to the safety of other road users.

Second, rule 76 of the Highway Code, which so far as material provides . ....

He quoted part of what is now paragraph 194, to which I have referred.

29. He then observed that section 38(7) of the Road Traffic Act 1988 provides:

"A failure on the part of a person to observe a provision of the Highway Code ... may be relied upon by any party to the proceedings as tending to establish or negative any liability which is in question in those proceedings."

30. Mr Eklund submits that the recorder in the present case did not refer to the Highway Code. That is not literally correct, although he elided in his reference to Griffin the passage to which I have just referred. Mr Eklund submits that Mr Purdue had been waiting for some time at the red light against him and could, and he submits should, have turned to his right during that period to see if anything was coming down Braunton Road. He submits that it is common experience that you do look to left or right quickly, and that that does not tend to hold up traffic or certainly would not have done so in the present case. He submits that it would have been a sensible and careful thing to do. He submits that in the present case the recorder stated the duties too narrowly. Emergency and other vehicles do sometimes go through red lights. Vehicles and pedestrians should look right and left in addition to relying on green traffic lights, not least because emergency vehicles do not always have their wailers in use and because it is common knowledge that some drivers jump red traffic lights. He submits that there is an express positive requirement in the Highway Code that drivers should, not only listen for, but also look for emergency vehicles, including fire engines. He submits that there can be no justification in the present case for not looking to the right and that the recorder had no basis for saying that, if there was such an obligation, it would have brought traffic to a halt. There was no other traffic to bring to a halt. You have to satisfy yourself that there is no other traffic around.
31. Mr Hillier in opposition to that submits that, as was said in Griffin, each case is to be decided on its own facts. That is what the recorder did. He submits that there is no rule of law requiring drivers to check to their right or left on proceeding over a green traffic light. He refers to the Highway Code. He accepts that there will be circumstances when a prudent driver will check if he hears a wailer. He suggests that the first practical obligation under rule 194 is to listen. Drivers should listen for emergency vehicles and usually hear them before they see them. There is no positive requirement to look for ambulances or other emergency vehicles which you have not in fact seen and which are not obvious. He submits that this case is different on the facts from Griffin -- I agree with that -- and that the recorder properly distinguished it on the facts. He submits that there is no obligation for Mr Purdue to look to the left or to the right. There was no need for him to do so in the absence of a wailer.
32. Mr Hillier did not accept the suggestion, which Mr Eklund has adopted, that any observant driver would, at the very least, have seen the fire engine with its flashing lights in his or her peripheral vision. This was a relatively bright morning on a June day, where perhaps the flashing lights would not show up as well.
33. As to apportionment, if the court were to find contributory negligence, Mr Eklund submits that there should be a substantial contribution from Mr Purdue, at least fifty per cent. The duty requiring Mr Purdue to look to his right was important and a simple one to comply with. By contrast, the defendants were undertaking a public duty of great importance. He submits that you cannot rely on green lights as giving you an unqualified right to proceed. Mr Hillier for his part emphasises the high duty on emergency vehicles crossing red traffic lights. He submits that the defendants were guilty of multiple failures, going too fast, not giving way, not activating the wailers. The claimant had a single momentary failure to look to the right. He suggests that the 60 per cent contribution which the claimant was held to be liable for in Griffin is illustrative because in that case the failures were numerous and significant.
34. I have not found the issue of contributory negligence easy. I have considerable sympathy with Mr Purdue who, on one view, simply proceeded to exercise his right of way to cross a green traffic light. The Highway Code obliges drivers to look and listen for emergency vehicles and to take appropriate avoiding action when they hear or see one. There are certainly circumstances in which a driver crossing a green traffic light should look or glance to left or right or both before proceeding. I would not elevate that into a point of principle in every case. As Simon Brown LJ said in the case of Griffin, each case turns on its own facts. It is right to recognise a duty of care beyond that of merely taking reasonable steps to avoid colliding with any vehicle crossing on red which the driver happens to see or otherwise becomes aware of. The extent of that duty depends on the facts of the case. It seems to me that the facts of this case are exceptional for obvious reasons. It was a straight dual carriageway. The road was clear of other vehicles. The traffic lights were green in Mr Purdue's favour. The visibility was clear and for practical purposes unimpeded. Yet this unfortunate accident took place. I would have expected Mr Purdue to glance to his right as he was stationery at the traffic lights, perhaps also to his left, except that this was a dual carriageway and traffic from the right was the first possibility. Whether my expectation that he should have glanced to the right is to be elevated on these facts to a duty to do so has given me some thought. His first need and the sensible thing to do was to observe the traffic light which was straight ahead of him. That is plainly what he was doing. I am inclined to think that a careful driver in his situation should have glanced to the right. You do not know that a silent fire engine is a fire engine until you see it, but it is common knowledge that drivers sometimes jump red traffic lights. However that may be, I find it very difficult to understand how Mr Purdue did not in fact see this fire engine in his peripheral vision as it approached with all its lights flashing. With some hesitation, I am driven to conclude that a properly observant driver would and should have so noticed the fire engine and that Mr Purdue failed to do so. I think that this failure amounts to a want of observation and thus a want of due care. Accordingly, in my judgment there was a degree of contributory negligence but, for the reasons advanced by Mr Hillier, I do not think that that degree was great. I am satisfied that the responsibility for this accident, unfortunate as it was, lay substantially with those driving and responsible for the fire engine. I would assess the degree of contribution as 20 per cent and would allow the appeal to that extent.
35. MR JUSTICE BODEY: I agree.
36. LORD JUSTICE THORPE: I also agree.
(The court then adjourned to consider the question of costs)
37. LORD JUSTICE MAY: The appellants have succeeded in reducing the 100 per cent judgment of the Recorder by this court's decision of 20 per cent contributory negligence by the claimant. Mr Eklund asks for the appellants' costs of the appeal. Mr Hillier draws our attention to a letter of 8th January 2001, written on behalf of the claimant to the representative insurers of the defendants, which included this:

"Nevertheless, without prejudice to these arguments, we realise that the complete lack of memory of our otherwise mature and sensible client will cause difficulty. Accordingly, pursuant to CPR Part 36, we are instructed to offer to settle the liability issue 70/25 in our client's favour - that is to say he will allow a 25% discount against his eventual damages.

This offer will remain open for 21 days and thereafter may only be accepted if the parties agree liability for costs or the court gives its permission. If this offer is rejected and at trial it is equalled or beaten, then we will place this letter before the court on the issues of indemnity costs and penalty interest."

38. That in my judgment was a completely orthodox claimant's Part 36 offer under rule 36.5. That provides:

"A Part 36 offer made not less than 21 days before the start of the trial must -

(a) be expressed to remain open for acceptance for 21 days from the date it is made; and

(b) provide that after 21 days the offeree may only accept it if -

(i) the parties agree the liability for costs; or

(ii) the court gives permission."

39. The rationale of that is obvious. It enables either party to offer a compromise, in this instance on terms as to liability. But it is obviously neither sensible nor just that an offer such as that should be expected to remain open for acceptance indefinitely. Time may pass. Costs may be expended. The parties' view of the case may change. It would plainly be unjust if it were necessary for an offer such as this to remain open, even perhaps right until the trial is about to start, so that the recipient of the offer can suddenly turn round and say: "After all, I would like to accept an offer you made two years ago."
40. Accordingly, and consonant with historic and present arrangements as to payments into court, there is a time limit within which an offer such as that may be accepted. Thereafter, it may not be accepted other than by agreement between the parties as to costs or the court giving permission. If the court gives permission, the court is able to impose conditions. Conditions may typically include that the party accepting the offer will have to pay the other party's costs incurred since the date of the offer, or perhaps since the date 21 days later up to which the offer might have been accepted. The fact that the offer only remained open for 21 days is a technicality. It is an offer in the nature of a payment into court. It provides the protection which is well understood in relation to costs, subject to the court's discretion, for which the rules provide. Those include, in rule 36.21, that if a defendant is held liable for more or the judgment given against a defendant is more advantageous to the claimant than the proposal contained in the claimant's Part 36 offer, the court may order interest on the whole or part of any sum of money awarded to the claimant at a rate not exceeding 10 per cent above base rate for some or all of the period starting with the latest date on which the defendant could have accepted the offer without needing the permission of the court. The court may also award the claimant his costs on the indemnity basis from the latest date when the defendant could have accepted the offer without needing the permission of the court, and interest on those costs at a rate not exceeding 10 per cent above base rate.
41. Needless to say, the judgment of this court is more advantageous to the claimant than the offer he had made back in January 2001.
42. Mr Eklund nevertheless draws our attention to a further letter from the defendants' solicitors dated 18th December 2001. This was written after the first instance judgment and after they had received the order of Robert Walker LJ giving the defendant partial permission to appeal. The letter offered a liability split of 60/40 in the claimant's favour. It was expressed to be open for 21 days from the date of service and they would bring the correspondence to the attention of the court should the need arise in respect of the question of costs.
43. Mr Eklund submits that the situation changed once judgment at first instance had been given and Robert Walker LJ had given permission to appeal. There was then the possibility for negotiations. But the claimant did not re-state his willingness to compromise liability on a 75/25 per cent basis. Accordingly the defendants should be regarded as having succeeded in this court and should be awarded their costs.
44. In my judgment that submission misunderstands the purpose and effect of a Part 36 offer. An orthodox payment into court or a Part 36 offer normally, and certainly in this case carries through to the eventual result of the proceedings. If there is an appeal, it carries through to the result in this court. That is why rule 52.12 provides that the fact that a Part 36 offer or a Part 36 payment has been made must not be disclosed to any judge of the Appeal Court who is to hear and finally determine an appeal until all questions other than costs have been determined. The position here is that on 8th January 2001 the claimant made an offer to settle these proceedings in accordance with the rules by means of a Part 36 offer. The eventual result in this court has been more favourable than that offer. Rule 36.21 comes into play.
45. For my part, I would award the claimant the costs of this appeal for this reason. I would award them on an indemnity basis exercising the discretion under rule 36.21. I would not order interest on the costs because we are told that the actual payment of those costs has yet to be made, so that there is no date from which interest could properly run.