England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER DISTRICT REGISTRY
SWIFT J
LOWER COURT NO: C2006/0023

		Royal Courts of Justice Strand, London, WC2A 2LL
		03 May 2007

Lord Justice Maurice Kay :

1. Many road traffic accidents involve collisions between two vehicles one of which has turned right from a minor road onto a major road along which the other was proceeding. In the great majority of such cases the driver who comes from the minor road attracts most if not all of the blame. The present appeal is from a judgment and order of Swift J who held that, in the particular circumstances of this case, the negligence was entirely that of the claimant in the action, who had been riding his motor scooter along a major road when it collided with the car of the defendant as he turned right out of a minor road.
2. At about 9.40 on the morning of 26 June 2002, Mr Farley was riding his Vespa scooter along Bolton Road in the direction of Bury. Bolton Road is a major road and contains a number of junctions with minor roads. Mr Farley was approaching a point where, on his left-hand side, Glenboro Avenue meets Bolton Road. To his right, directly opposite Glenboro Avenue, another minor road, Procter Street, meets Bolton Road. Glenboro Avenue is 6.9 metres wide until it opens out at the junction. Entry of traffic from Glenboro Avenue onto Bolton Road is governed by double broken white lines, indicating that traffic emerging from Glenboro Avenue should give way to traffic travelling along Bolton Road. The total width of the carriageway of Bolton Road is 10.65m but there are cycle lanes, 1.3m wide, running along the edge of the carriageway in both directions. Thus, the vehicular carriageway is reduced to a total of 13 ft 4 inches or 6 ft 10 inches in each direction. In the centre of the carriageway there is a broken white line of the type which indicates that there is a hazard ahead. At the time of the accident the weather was fine and dry and visibility was good. The speed limit on that part of Bolton Road is 30 miles per hour.
3. As Mr Farley approached the junction with Glenboro Avenue, he was overtaking a long refuse wagon which was travelling in the same direction. It was indicating an intention to turn left into Glenboro Avenue. However, the refuse lorry was 8 ft 4 inches wide and 34 ft long and it would not have been able to effect such a left turn until a Ford Escort car, which was being driven by Mr Buckley, had turned out of Glenboro Avenue into Bolton Road. It was the intention of Mr Buckley to effect a right hand turn so as to travel towards Bolton. The driver of the refuse wagon, Mr Nieland, slowed down, thus creating a space between his vehicle and the one ahead of him and enabling Mr Buckley to drive out of Glenboro Avenue. Mr Buckley had paused at the junction until there was a gap in the traffic moving along Bolton Road in both directions, whereupon he drove out of Glenboro Avenue and across the front of the refuse wagon. As the front of his car advanced beyond the front offside of the refuse wagon, there was a collision between the car and Mr Farley's scooter as it completed the overtaking of the refuse wagon. The point of the collision was above the offside front wheel arch of the car. The middle of the front wheel arch is 2 ft 10 inches from the front of the car.
4. In addition to those facts, which were largely undisputed at trial, the judge made the following findings:

"… the traffic travelling in the direction of Bury was heavy and slow moving … [the refuse wagon] was in an almost central position between the central white line and the edge of the cycle lane … there would have been about 2½ft of the carriageway on either side of it. On the nearside of the wagon there would have been an additional 4 or 5 ft, being the width of the cycle lane … Before the accident (Mr Nieland) had not brought his vehicle to a complete halt, but was still moving very slowly … the claimant was travelling at a speed of about 30 miles per hour as he overtook the refuse wagon … there would have been a distance of only 2½ft between the offside of the wagon and the centre of the road. The claimant's motor scooter was 2½ft wide and he must have allowed some clearance, at least a foot – most probably more – between the side of the refuse wagon and the edge of his motor scooter. Accordingly, I find that, as he overtook the wagon, he must have been travelling with the wheels of his motor scooter on, or virtually on, the centre white line and with some part of the body of the scooter over the white line … The defendant stopped at the junction and waited until his path appeared clear in both directions. He then moved out … He did so in one continuous movement, travelling slowly at about 5 – 8 miles per hour all the while … I do not accept his evidence that he slowed his speed. I accept Mr Nieland's evidence that it was one continuous movement at the same speed … The defendant's car travelled across the Bury-bound carriageway at about 5 – 8 miles per hour and … the collision occurred when it was in motion at that speed and at a point when the centre of the front wheel arch of the car … was virtually on the centre line. That would mean that the front of the car was protruding about 5ft or so beyond the offside of the refuse wagon. I find that the car moved only a short distance, if at all, in a forward direction after the collision. This supports my finding that it was moving at a slow speed at the time of the impact."

5. The judge then expressed her conclusions on liability, dealing first with Mr Farley and then with Mr Buckley. Of the former, she said:

"He chose to overtake a line of slow-moving traffic in busy traffic conditions and on an urban road which he knew to have a number of road junctions … [He] had been unable to see the junction because of the presence of the refuse wagon. … He chose to overtake a vehicle which was so large and bulky that, before he began to overtake it, it completely blocked his view to the left and in front. It was inevitable that it would continue to block his view to the left at all times until he emerged beyond the front of its cab. He no doubt assumed that the refuse wagon had slowed almost to a standstill, because of the presence of traffic immediately in front. However, he was unable because of the presence and position of the refuse wagon to verify that assumption before embarking upon his overtaking manoeuvre. As it happens, the assumption was of course incorrect. He would probably have been unable, until he was in the act of overtaking, to see that a sizeable gap had developed between the refuse wagon and the traffic in front and to appreciate that the refuse wagon had slowed for a reason other than slow-moving traffic in front. By that time it would be too late to act. He had voluntarily put himself in the position where he was unable to see any traffic which might be emerging from a junction to the left, or indeed any pedestrians who may be crossing the road in front of the refuse wagon … [He] either failed to notice the indicators because he was overtaking the refuse wagon as part of a line of traffic and looking ahead of him or noticed them but failed to heed their significance. Either way, there was a serious want of care on his part. The other important aspect is the claimant's speed. I have found this to be 30 miles per hour, which was the maximum speed at which traffic was permitted to travel on this stretch of road. It is speed which one would expect to be attained in clear road conditions by a vehicle with a clear unobstructed view of the road ahead. Here the claimant was performing a hazardous manoeuvre in circumstances in which he was unable to see to his left or in front of the vehicle he was overtaking. It behoved him, if he was to undertake this manoeuvre at all, to do so at such a speed that he could stop within a very short distance indeed … The claimant's speed made it completely impossible for him to deal with an emergency of the type which he faced as he overtook the refuse wagon. It is conceded on his behalf that his speed was excessive, having regard to the road conditions. I would go further than that and say that he was travelling at a speed which was reckless having regard in particular to the nature of the manoeuvre which he was carrying out, the lack of visibility to his left and the fact that the refuse wagon (albeit probably unnoticed by him) was displaying its left indicators."

6. Turning to the driving of the car by Mr Buckley, the judge said:

"There is no doubt that he waited until gaps had occurred in the traffic travelling in both directions. The refuse wagon plainly presented no hazard and Mrs Finch's car [which was travelling along Bolton Road in the direction of Bolton] was sufficiently far from the junction to allow ample time for the defendant to turn. It is not the case that he was taking a chance and making a quick turn in circumstances when it was unsafe to do so. Indeed, it is clear that he proceeded slowly and cautiously and I have accepted that he was travelling at a slow speed when the accident occurred."

7. The submission made on behalf of Mr Farley at trial was that Mr Buckley, on his own admission, was aware that vehicles did sometimes overtake slow moving traffic at the approach to this junction before turning right into Procter Street and that, being aware of that possibility, once he reached the offside of the refuse wagon, he should have stopped with only about 1 or 2ft of the front of his car protruding beyond the refuse wagon. Although he would not at that point have had any view down the far side of the refuse wagon, such a manoeuvre would have had the effect of warning an overtaking driver or rider of his presence, thereby enabling that driver or rider if not to stop, at least to swerve so as to avoid a collision. In other words, rather than emerging in a continuous movement, Mr Buckley ought to have engaged in what came to be described as "nose-poking". The judge rejected this submission describing it as a counsel of perfection. She said:

"As he looked to his right from the mouth of Glenboro Avenue, the defendant would have seen that the cycle lane was unoccupied and that traffic had built up behind the refuse wagon. He was aware that, until he left the junction, the refuse wagon could not make its left turn. He saw the refuse wagon's indicator and might well have thought, as did his wife (who was in the front passenger seat), that it was obvious to traffic travelling behind the refuse wagon what was going on. In those circumstances, he would not have expected traffic to have been overtaking the refuse wagon. The wagon was occupying the whole or virtually the whole of the Bury-bound carriageway, so that, if any vehicle were to overtake, it would have had to have been travelling on or very close to the white line or on the wrong side of the road. That factor would make it even less likely that there would be any traffic overtaking. Moreover, even if the defendant did have in mind the possibility that there might be overtaking vehicles intending to turn into Procter Street, he could reasonably have expected them to be moving at a very slow speed as they approached the junction and prepared to make their right turn. The defendant emerged into the junction at a slow speed. For the first part of his turn he was protected by the refuse wagon. He moved gradually beyond that protection. He could not obtain a line of vision along the side of the refuse wagon until he had moved out much further. So he continued to move slowly forward. His wife said that he was travelling so slowly that she became concerned that the gap in the Bolton-bound traffic might close. I have found that at the time of the accident he had advanced only about 5ft beyond the offside of the refuse wagon. In moving slowly as he did, it seems to me that the defendant was taking all reasonable precautions against the possibility, however remote, that there might be a vehicle overtaking the refuse wagon. He could not, in my judgment, have foreseen that there would be an overtaking vehicle which would have ignored the hazards I have previously mentioned and be travelling straight across the junction at a speed which would not allow it to stop when it saw the defendant's car. It seems to me, that in all the circumstances of this case, to stop his car just beyond the offside of the refuse wagon would have been to go beyond the duty of reasonable care."

8. On behalf of Mr Farley, Mr Redfern QC points to the difference between what Mr Buckley said he did and what the judge found. In evidence, Mr Buckley had described himself as "crawling out" and "edging forward bit by bit, rather than going at any speed, so that anything could see the front side of my car". In other words, nose-poking. That account was rejected by the judge in favour of "one continuous movement at the same speed", namely "about 5 – 8 miles per hour". Mr Redfern's central submission is a simple one, namely that if Mr Buckley had been driving as he described in evidence, he would not have been driving negligently and the accident would either not have happened or would have been less serious. On the other hand, upon the basis of the judge's findings of fact, the driving was negligent. His ultimate submission is that both parties were negligent and that an apportionment on a 50:50 basis would be appropriate because each was culpably mindless of the foreseeable risk created by the other. The question for this court is therefore whether the judge was wrong to conclude that the approach contended for by Mr Redfern amounted to a counsel of perfection rather than indisputable evidence of negligence.
9. In my judgment, the conclusion of the judge was a permissible one. The finding that Mr Buckley was travelling at "about 5 - 8 miles per hour" is given a prominent part in Mr Redfern's submissions. He suggests that such a speed cannot properly be described as "slow" because it approximates to a very fast walking pace or perhaps a child's running speed. However, although this finding as to speed was made by the judge, it has to be seen in context. Its source was the evidence of Mr Nieland who had stated in his witness statement:

"The movement was continuous but not particularly fast – I would estimate at somewhere between 5 and 8 miles an hour."

10. When cross examined, he was challenged as to his evidence of continuous movement but not specifically on his estimate of the speed. The judge also accepted the evidence of Mrs Finch to the effect that Mr Buckley was moving slowly and cautiously and the evidence of Mr Buckley's wife that he was moving so slowly that she became concerned that the available gap in the Bolton-bound traffic might close. It is apparent from the several passages in her judgment to which I referred earlier that the judge was satisfied that Mr Buckley proceeded "slowly and cautiously". That is a finding based on impressions gleaned from several sources. I would describe it as a firm or hard finding. Very often in cases such as this reliable impressions are more probative than arithmetical estimates. The finding of "about 5 - 8 miles per hour", on the other hand, I would describe as a relatively soft finding. It is in terms an approximation and it is based on the observation of a person whose ability to give accurate evidence of speed was necessarily limited. All that Mr Nieland was able to see was a car travelling across the front of the refuse wagon from a standing start for a distance of less than two car lengths. That would enable him to give clear evidence of continuity of movement but any evidence he could give by way of an estimate of speed could not have the same cogency. It seems to me that the real issue in this case is whether it was negligent of Mr Buckley to effect a continuous movement rather than to nose-poke. On the particular facts of this case, I am satisfied that the judge was entitled to find as she did. Whilst it was foreseeable that a motorcycle might be overtaking the refuse wagon at modest speed with a view to turning right into Procter Street (as Mr Buckley accepted in evidence) or even to continue ahead with an appropriate degree of care, it was not foreseeable that a motorcycle would be overtaking the refuse wagon in the reckless manner found by the judge. Her use of the word "reckless" was apt. Moreover, given the short space between the offside of the refuse wagon and the centre of the carriageway, the difference between continuous movement and nose-poking in this case was extremely slight. It would be too much to expect a driver in the position of Mr Buckley to calculate to a nicety the number of inches which it would be prudent to nose-poke. Moreover, nose-poking carries risks of its own, in particular it may provoke an overtaking motorcyclist into a hazardous swerve.
11. It follows from what I have said that, in my judgment, the judge considered the implications of this case with conspicuous care and reached an appropriate conclusion. That is not to say that in all such cases a driver who fails to nose-poke or emerges continuously at "about 5 – 8 miles per hour" will avoid a finding of negligence. It is common ground in this case and bears emphasis that cases such as this are very fact-sensitive. On the unique facts found by the judge, I consider that she was entitled to find an absence of negligence on the part of Mr Buckley and I would dismiss this appeal.

Lord Justice Wall:

12. I agree that this appeal should be dismissed for the reasons given by Maurice Kay LJ. I would like in particular to associate myself with everything he says in paragraph 11 of his judgment.

Lord Justice Pill:

13. I also agree, and for the reasons given by Maurice Kay LJ. The judge was entitled to conclude that Mr Farley should bear full responsibility for the collision. The judge was entitled to regard his conduct in overtaking a slow moving line of traffic at 30miles an hour on an urban street as "reckless" and his lack of anticipation as showing a "serious want of care".
14. My conclusion does not detract from or diminish the care to be expected from a driver turning right, as Mr Buckley was, in circumstances such as these. Great care is required.
15. The judge's finding that Mr Buckley emerged from the minor road at "about 5-8 miles per hour" was based on a statement of Mr Nieland, the driver of the refuse wagon, which was not challenged in cross-examination, though contrary to Mr Buckley's evidence. The finding is difficult to reconcile with her finding that Mr Buckley was proceeding "slowly and cautiously", was "moving at a slow speed" and moved forward "only a short distance, if at all" after the collision, and with her overall assessment of Mr Buckley's conduct.
16. This case is not authority for the proposition that emerging from a minor road at 5 to 8 miles an hour, in circumstances such as the present, is generally an acceptable manoeuvre.