England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MRS JUSTICE SHARP

		Royal Courts of Justice Strand, London, WC2A 2LL
		27th July 2010

Lord Justice Richards:

1. This appeal concerns responsibility for a road traffic accident which occurred on 17 November 2004 on the B1085 Turnpike Road at Red Lodge in Suffolk. At about 7.45am that morning there was a collision between a Ford Fiesta driven by the appellant, Mr Bowyer, and a Renault Traffic van driven by the respondent, Mr Clark. As a result, the van struck a young woman (to whom I will refer as "DP") who happened to be walking past on the pavement. She suffered profound injuries in consequence. Both drivers were subsequently convicted of careless driving. In civil proceedings brought by DP, Mr Bowyer admitted that her injuries were caused in part by his negligent driving, whilst Mr Clark denied negligence. Mr Bowyer brought a Part 20 claim against Mr Clark, contending that Mr Clark was negligent and seeking a contribution. The trial took place before Sharp J, who held that Mr Clark had not been negligent and that Mr Bowyer had been entirely to blame for the accident. He now appeals against the judge's order, with permission granted by Pitchford LJ. DP played no part in the Part 20 proceedings and is not involved in the appeal.
2. For the bald facts of what happened the judge referred to the joint report of the collision reconstruction experts:

"Mr Bowyer was driving a Ford Fiesta car along Turnpike Road in a southwesterly direction towards Newmarket. He was on his way to 42 Turnpike Road which was located to his offside. Mr Clark was driving a Renault Trafic van along Turnpike Road in a southwesterly direction. As Mr Bowyer reached 52 Turnpike Road he slowed and then made a turn towards the offside of the road. As Mr Clark closed on the slowing Ford Fiesta he pulled out to go past it. Then, on seeing it turning, he swerved to the right in an unsuccessful attempt to avoid a collision. The front near side corner of the Renault Trafic van contacted the front offside wing of the Ford Fiesta. Following that contact the Renault Trafic van continued across to the offside of the road, mounted the kerb and collided with the pedestrian, [DP], before turning back to its own side of the road and stopping."

3. A little later in her judgment she gave a fuller description of the place of the accident and of the conditions at the time:

"12. Turnpike Road is a flat, straight, wide road. It is 12 or 13 metres wide. Before a by-pass was built some twelve years ago the particular stretch of road was part of the main A11 trunk road between Norwich and London. It was de-restricted and the speed was then 60 miles an hour. The speed limit is now and was at the time of the accident 40 miles an hour. The evidence is that at the time of the accident and presumably because of the by-pass it was a quiet stretch of road with very little traffic.

13. Down the centre of the road, in the area with which this case is concerned, is a hatched area bordered by broken white lines. The hatched area apparently dates back to when that part of the road was the A11 trunk road. It was in a state of disrepair in that the lines were partially obliterated in certain areas. It is also the evidence and is apparent from the police photographs of the scene that there was a certain amount of debris on the hatched area, small stones and such like and that the surface of that part of the road was somewhat rough. It appears from the relevant part of the 1999 edition of the Highway Code then in force that it was legal to enter the hatched area since it was bordered by a broken white line but that drivers should not do so unless it was necessary and they could see it was safe it was safe to do so.

14. A few metres going north past number 52 there was a break in the hatched area apparently to allow traffic to turn right into a caravan park. On the opposite side of the road to number 52 there was a wooded area. Next door to number 52 was number 54 and it was through the wall of number 54 that tragically the claimant was propelled as a result of the collision.

The conditions at the time of the accident

15. The weather was dry as was the surface of the road. Visibility was good and it was light. It is agreed that visibility extended to some 300 metres either side of the place of the collision, that is for about 600 metres in total."

4. After a detailed analysis of the evidence given by the factual witnesses and the expert witnesses, the judge made findings of fact which included the following. She rejected the contention that Mr Clark had been driving at an excessive speed, a contention which she described as the central plank of the case for Mr Bowyer. She found that he had been travelling at about 40 miles per hour at the time of the overtaking and the collision. She rejected Mr Bowyer's evidence that he had had his right hand indicator on before the collision. She did not accept that there was any reason for Mr Clark to suppose as he approached the car that Mr Bowyer was intending to turn right. She found that Mr Bowyer had slowed down and moved slightly to the left because he felt he had missed his turn and he decided to do a U turn, and it was when he was trying to do the U turn that the van hit him. She also found that, as far as Mr Bowyer was concerned, he was alone on the road, and in those circumstances he did not indicate or indeed look before starting his manoeuvre.
5. Those matters led to her key conclusions at paragraphs 61 to 63 inclusive:

"61. In those circumstances I am unable to conclude that Mr Clark was negligent in any way in attempting to overtake the car. Mr Bowyer was slowing down to a speed of about 10 miles an hour and was pulling slightly to the left, as I find, as Mr Clark approached. Mr Clark was driving at an appropriate speed. The road was wide and clear and the visibility was excellent. I find Mr Bowyer was negligent in failing to indicate an intention to turn right either by using an indicator or by the motion of his car, failing to look into his mirrors before doing so and in attempting to execute a U-turn in those circumstances. I reject the suggestion that Mr Clark should have been suspicious in some way as to what was happening or that he should have been prepared for Mr Bowyer to turn right when there was nothing to suggest either by indication or by the position of the car that that was what Mr Bowyer was going to do.

62. Mr Featherby suggests Mr Clark should have prepared , as should all motorists, for there to be an emergency and it was negligent for him to overtake before ascertaining what the car in front was intending to do. I reject that suggestion. I think Mr Browne is right when he submits that there was no indication of an impending emergency (and the brake lights came on only late) and that it is unrealistic, or to put it another way, a counsel of perfection to have required Mr Clark to slow down before overtaking, to have hung back, to have tooted his horn, to have flashed his own lights before overtaking. Mr Clark accepts that he did not indicate before overtaking and also accepts he should have done so, but I do not consider that omission had any part to play or causative effect on what occurred.

63. The standard I have to apply is that of the reasonably competent driver and I do not consider Mr Clark's driving on this occasion fell below that standard. Dr Searle conducted an experiment to see what other drivers would do when a test driver slowed down to 5 to 10 miles an hour with no indication at the exact point where Mr Bowyer did. It is of interest, although not necessary for my decision, that on six of six occasions the test car was overtaken and that none of the overtaking drivers sounded their horn. I do not consider it was negligent to overtake in all the circumstances either merely because there were opportunities (as there are on most roads) for a driver to make a right-hand turn."

6. As to Mr Clark's conviction for careless driving, she said that there had been no real evidence before her of what occurred in the magistrates' court or as to the reasons for their decision, and she did not consider herself bound in any way by the decision they took.
7. I should mention that the judge also dealt with the issue of apportionment in case she was wrong in her primary conclusions. In that context she observed that a breach of the Highway Code does not amount in itself to negligence, but she regarded it as not insignificant that Mr Bowyer did none of the things advised by paragraph 155 of the Code then in force, whereas Mr Clark had complied with the advice in paragraphs 141 to 143 of the Code.
8. On the appeal before us the case for the appellant has been presented in commendably succinct and clear terms by Mr Tim Horlock QC. Although we have not heard from Mr Benjamin Browne QC for the respondent, we are also grateful to him for his written skeleton argument.
9. The first main point advanced by Mr Horlock concerns the judge's rejection of the suggestion that Mr Clark should have been suspicious in some way as to what was happening (see paragraph 61 of her judgment, already quoted). By reference to passages in the transcript of the evidence, in particular the cross-examination of Mr Clark, it is submitted that Mr Clark himself admitted to doubt about the intentions of Mr Bowyer, in particular that whilst he principally believed that the car was slowing down to stop on the left, he could not exclude the possibility that some other action might be taken. In any event, it is submitted that a competent or prudent driver would have had such doubt in the circumstances.
10. The uncertainty that existed, or should have existed, in Mr Clark's mind should have caused him, it is submitted, to exercise caution by taking some step such as holding back or flashing his lights or sounding his horn. He should have treated this as a situation where it was unpredictable what Mr Bowyer might do next and should have acted accordingly. He should not have overtaken at or about the speed limit when he could not know with confidence what the car was going to do.
11. The second main point advanced, very closely related to the first, is a contention that the judge was wrong to describe it as "a counsel of perfection" to slow down or hold back and flash the lights or sound the horn before overtaking. Mr Horlock submits that, in the circumstances, this cannot have amounted to a counsel of perfection but was what was to be expected of a competent driver, all the more so when account is taken of paragraph 109 of the Highway Code then in force, to which the judge made no reference in the course of her conclusions. Paragraph 109 relates to the hatched area on the relevant section of road and provides that "if the area is bordered by a broken white line you should not enter the area unless it is necessary and you can see that it is safe to do so." The judge had in fact referred to this at the end of paragraph 13 of her judgment, which I have quoted. The point made by Mr Horlock is that she ought to have concluded that Mr Clark was in breach of paragraph 109 in that it was not necessary for him to overtake and thus to enter the hatched area; he could have held back and delayed overtaking until he had passed the hatched area. The breach of paragraph 109 is one of the matters to be taken into account in determining whether he acted with reasonable care.
12. The grounds of appeal contain an additional matter concerning the judge's finding that Mr Clark's speed was not excessive in all the circumstances. Mr Horlock has indicated before us that that is not pursued as a discrete issue, but it is said, for reasons already briefly covered, that Mr Clark should in the circumstances have slowed down.
13. In assessing the various points advanced, it seems to me that the first question is whether, contrary to the judge's evident understanding of the position, the evidence shows that Mr Clark was, or should have been, in real doubt as to Mr Bowyer's intentions. We have been referred by counsel to various passages in the transcript; Mr Horlock has taken us to one passage in the course of his oral submissions, but both skeleton arguments contain references to other passages which we have considered. For my part, having read those passages, I am satisfied that the manner in which Mr Bowyer drove gave every indication to Mr Clark (and indeed to any competent driver) that he was slowing down with the intention of stopping on the left of the road, or possibly in the lay-by a little further up on the left. That was evidently what Mr Clark himself thought that Mr Bowyer was doing. True it is that Mr Clark could not positively exclude the possibility that he might suddenly, and without warning, turn right; but there was nothing in Mr Bowyer's driving to suggest that he was likely to turn right or that he was doing anything other than slowing down preparatory to stopping on the left. A turn to the right was the last thing that Mr Clark could reasonably have expected to occur.
14. In those circumstances, and given everything else we know about the road and the conditions affecting it, I do not accept that a reasonably competent and prudent driver, travelling at or about the speed limit, would have slowed down before overtaking the car, or would have held back, sounded his horn or flashed his lights before overtaking. In my judgment, the judge was entitled to find that Mr Clark acted without negligence in overtaking as he did. In my view she was also justified in describing it as a counsel of perfection, rather than as something required by the duty to exercise reasonable care, for him to have slowed down or to have held back, sounded his horn or flashed his lights rather than simply overtaking.
15. I do not think that the analysis is affected by the fact that he had to enter the hatched area of the road when overtaking. It seems to me that in the situation that faced him it was reasonably necessary for him to enter that area in order to overtake at all. As I have indicated, it is unrealistic to suggest that he should have slowed down to Mr Bowyer's speed while waiting to see if Mr Bowyer was stopping on the left hand side of the road. I do not accept that what happened was in breach of paragraph 109 of the Highway Code, but even if there was a breach of the Code it does not mean that Mr Clark was necessarily negligent and, for the reasons I have already given, I consider that the judge was right to find that he was not negligent. That view is reinforced by the fact that this particular hatched area evidently dated back to the time when this was the main road and the hatching had not been renewed or repainted, as Mr Clark will undoubtedly have known from his familiarity with the route. So the hatching lacked the significance it might in the ordinary course have had. I would add finally that the judge's omission to give specific consideration to paragraph 109 in expressing her conclusions was, in my view, not material.
16. It is unnecessary, as I have said, to say anything more about the issue of speed. For completeness, however, I would add that it seems to me that the judge was plainly entitled to find that Mr Clark's speed was not excessive in the circumstances, and that neither by itself nor in conjunction with the other features of the case did it warrant a finding of negligence.
17. I would therefore dismiss the appeal.

Lord Justice Sullivan:

18. I agree.

Lord Justice Lloyd:

19. I also agree. The appeal will therefore be dismissed.

Order: Appeal dismissed