Case No: B3/2011/1328 
Neutral Citation Number: [2011] EWCA Civ 1378
IN THE COURT OF APPEAL  ( CIVIL DIVISION )
ON APPEAL FROM THE PRESTON COUNTY COURT
(HIS HONOUR NIGEL HOWARTH)

Royal Courts of Justice
Strand, London, WC2A 2LL
.
Date: Tuesday 28th October 2011

Before:

PRESIDENT OF THE QUEEN'S BENCH DIVISION
(SIR JOHN THOMAS)
LADY JUSTICE BLACK
and
LORD JUSTICE KITCHIN
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Between:

	Burton	Respondent/Claimant	
	- and -		
	
Evitt	Appellant/
Defendant	

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Mr Richard Hartley QC (instructed by Messrs Berrymans Lace Mawer LLP ) appeared on behalf of the Appellant.
Mr Christopher Limb (instructed by Napthens LLP) appeared on behalf of the Respondent.
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Judgment
President of the Queen’s Bench Division:

1.	At about 2pm on the afternoon of Boxing Day 2006 there was an accident on the A674.  The accident occurred between a Harley Davidson 340cc motorcycle being ridden by Mr Burton, the claimant below and the respondent in this court and a Vauxhall Vectra being driven by Mr Evitt, the defendant below, and the appellant in this court.  Mr Evitt was turning right into a car park of a public house, The Hoghton Arms.  Behind him was a queue of cars.  The motorcycle being driven by Mr Burton was travelling in the same direction, overtook the line and collided with the car being driven by Mr Evitt as he turned into the public house.  Mr Burton was very seriously injured.  Because of those injuries the matter did not come to trial until September 2010.  

2.	After hearing evidence on the issue of liability, to which the trial was confined, the judge, HH Nigel Howarth, sitting as a Deputy Circuit Judge gave judgment.  He found that Mr Burton was two-thirds responsible for the accident and Mr Evitt one-third.  Mr Evitt appeals on the basis that, although he does not seek to contest the findings of fact made by the judge, the finding that he was negligent was an error, as the conclusion amounted to what is described as a counsel of perfection.  In the alternative Mr Evitt also seeks to contest the judge's apportionment of liability.  

The facts as found by the trial judge

3.	The judgment of HH Nigel Howarth is clear and sets out in detail the findings of fact.  They can be summarised as follows.  On that Boxing Day there was heavy traffic proceeding along the A674 towards the M65, which was the direction both the Harley Davidson and the Vauxhall Vectra were going.  That appears to have been the case, because there was a football match in Blackburn, and the traffic which was proceeding in that direction towards the roundabout was going to the M65 for the purposes of joining the motorway to Blackburn.  Mr Evitt was at the head of the queue of cars.  Behind him was a 4 x 4 BMW and, although the evidence on this was not clear, probably four or five other cars behind it.  Mr Evitt was going to the match at Blackburn.  He intended to pick up a passenger at the Houghton Arms, which was about 130 metres away from the M65 junction. 

4.	After going through the village of Higher Wheelton, which had a 30 mph speed limit, the traffic picked up speed to about 45 to 50 miles an hour, the road being derestricted.  From the photographs that we have seen and from what the judge says it is clear that this was a wide carriageway.

5.	At approximately 200 metres from the public house there was a lay-by.  At that position Mr Evitt slowed down.  He eased his foot off the accelerator and looked into the wing mirror.  He saw nothing on his offside.  He then applied his brakes and put his indicator on as he was approximately 25 to 50 metres from the car park.  There was no traffic coming from the opposite direction.  Despite that, Mr Evitt slowed down to a crawling pace because he saw a car was coming out of the public house car park and he was unsure in which direction it would turn.  He was concerned it might turn across his path.  

6.	As he slowed down to almost a crawling pace, he looked again into the mirror and saw nothing on his offside.  However, and this is the central finding in the case, there was what is described by the judge as a triangle of his invisibility because the BMW 4 x 4 immediately behind him was bigger than his car and the BMW 4 x 4 had moved nearer to the centre line of the road in preparation for entering the roundabout at the junction with the M56.  

7.	The judge then, in a crucial passage, found that Mr Evitt had virtually come to a standstill.  He was going very slowly before he started to turn right.  None of the other drivers in the queue appeared to have known that there was the BMW motorcycle being ridden by Mr Burton in the vicinity until the driver of the BMW looked into his wing mirror and saw Mr Burton overtaking the line of cars.  The driver of the BMW 4 x 4 then saw Mr Burton over the centre line of the road as he got to approximately the rear-hand corner of the BMW 4 x 4.  The reason that Mr Burton had started to go over in that direction was that at that point Mr Burton had seen Mr Evitt's car start to turn right into the car park.  That, however, was too late because, at Mr Burton's speed, he was unable to brake and avoid the collision.  The only way of avoiding a collision was to try to steer around the Vauxhall.  He tried to steer but was unable to do so.

8.	The judge then found that the motor cycle had not seen Mr Evitt's car as it was in turn hidden by the 4 x 4.  He estimated that the speed at which Mr Burton was travelling was between 45 and 50 miles an hour, a speed which the judge subsequently criticised.  As I have said, the collision resulted in serious injuries to Mr Burton.

The trial judge’s findings on negligence

9.	The judge's decision can be shortly expressed.  As I have indicated, he found that Mr Burton was riding his motorcycle at a speed that was not safe.  Furthermore he was riding in such a way that he could not deal with an emergency.  On that basis he found he was negligent.  That finding is not and could not possibly be disputed.   

10.	His finding of negligence against Mr Evitt appears largely to have been based on the application of Rule 179 and Rule 180 of the 2007 edition of The Highway Code, which was agreed to state The Highway Code in terms that were applicable at the time of the accident.  Rule 179 said :

“Well before you turn right you should

use your mirrors to make sure you know the position and movement of traffic behind you 
give a right-turn signal 
take up a position just left of the middle of the road or in the space marked for traffic turning right 
leave room for other vehicles to pass on the left, if possible”

Rule 180 stated:

“Wait until there is a safe gap between you and any oncoming vehicle. Watch out for cyclists, motorcyclists, pedestrians and other road users. Check your mirrors and blind spot again to make sure you are not being overtaken, then make the turn.”

11.	On the basis of the rule and the facts that I have endeavoured to summarise, the judge's decision can be expressed in this short paragraph set out at paragraph 18 of the judgment.  After referring to the triangle of invisibility to which I have referred, the judge continued:
"It is perfectly possible, and indeed unfortunately in this case, that there was a motorcycle somewhere in this triangle, I think, of invisibility.  What he should have done and what would have amounted to discharging his duty to take reasonable care required him to do was to move over his car closer to, and perhaps even over, the centreline of the road before he made his turn so that in his wing mirror (let us call it, we all know it is no longer on the wing of a car but next to the door), could see right down past the side of the four by four and see whether there was anything there.  The situation is that as The Highway Code says that before you finally move to take your right hand turn, you should check your mirrors and blind spot again."

He then went on to find that Mr Evitt did not do that and that was causatively responsible for the accident.

12.	The judge also found that if Mr Evitt had looked into his mirror he would have seen Mr Burton and would have stopped.  The judge rejected the argument advanced on behalf of Mr Evitt that excessive speed had caused the accident, in effect finding that if Mr Evitt had travelled across the centre line inch by inch, there would have been sufficient room for Mr Burton to manoeuvre his motorcycle round him and the accident would have been avoided.

The submissions of the parties

13.	In this court Mr Richard Hartley QC, who appears for Mr Evitt, contends as I have indicated that the judge's decision was what might be described as a counsel of perfection.  He points out that, although it is accepted that any driver ought to have been aware of the need to look out for motor cyclists overtaking on the offside, Mr Evitt had done that by looking into the wing mirror on the two occasions I have described, that is to say at the time he slowed down near the layby and again just before he turned.  It is submitted that that was sufficient.  To go beyond that was a counsel of perfection.  Mr Hartley QC submits that The Highway Code, in referring to a blind spot, was using that  in the terms normally understood, namely that which you cannot see from the mirrors in a car and which every driver knows is a point of invisibility where the driver has to check in another way.  It did not refer to what the judge described as the triangle of invisibility in this case.  There was no reason for Mr Evitt in those circumstances to have inched out.  To have required him to inch out, look into the mirror, inch out again until he could see (to cater for the possibility of a motor cyclist who was not travelling at more than 10 to 15 miles an hour) was something that was not required.  If this motorcyclist had been traveling at 10 to 15 miles per hour the accident would not have happened.

14.	He submitted, on causation, that the motor cycle would have been travelling at a speed of 73 feet per second and could only have come into view about two car lengths before he got to Mr Evitt's car.  By the time Mr Evitt had seen the motorbike the accident would have occurred.  The road at the time was damp and the stopping distance was considerably in excess of 53 metres, which is the standard stopping distance for a car traveling at that speed.  There would have been insufficient time to avoid the collision.

15.	Mr Limb who appears on behalf of Mr Burton contends that the decision of the judge was correct.  He had applied the correct principles.  It was a matter of the judge's judgment in this case to have concluded in all the circumstances that what Mr Evitt did was negligent.  It was not a counsel of perfection, as it followed The Highway Code.  His argument on causation was simply this that it was a matter open to the judge to have found as he did.  It was justified on the basis that, had Mr Evitt moved in the way that the judge found, namely inching out, there was sufficient room for the motorcycle being ridden by Mr Burton to have gone round him.  

Conclusion on negligence

16.	As was observed in the course of argument, the issue is in a relatively narrow compass.  It is common ground that, in driving along a road of this kind, a driver should be particularly aware of the presence of motorcyclists and of the fact that they overtake lines of cars.  I accept that, in the circumstances of this case, Mr Evitt did, until he got to the point where he stopped, act with considerable care.  He slowed down, checked in his wing mirror, put on his indicator and then came to a point at which he was crawling.  However, when he got to that point it is clear that he could not see what might be coming up on the offside.  Although the judge referred to a “blind spot” and that is the term used in The Highway Code, I do not think any technical interpretation should be given to the words “blind spot”.  It means an area a driver cannot see.  What The Highway Code is doing is referring to the obvious point that if a driver cannot see something, a driver has to take other measures.

17.	It seems to me, therefore, that, as it was clear that the size of the 4 x 4 and the positioning I have described of it on the road meant that there was an area Mr Evitt could not see, he should have inched out.  Any driver in circumstances such as those where the driver cannot see what is behind him has to take that fairly elementary step.  I would, therefore, not be prepared to interfere with the findings of the judge in those circumstances.  There was in my view a failure on the part of Mr Evitt, as the judge found on the facts of this case, to exercise due care.  

18.	I would, therefore, for my part dismiss the appeal on the finding on negligence.

Contributory Negligence

19.	However it does seem to me that this is a case where the relative blameworthiness and causative potency was a matter that required greater analysis than that given by the judge.  It is difficult to conceive of any explanation consistent with anything other than gross negligence by Mr Burton in driving at the speed he did and overtaking this line of cars that was slowing down.  The negligence was of a very high order and there is no doubt in my view that it very substantially contributed to what happened.  On the other hand Mr Evitt was performing, as is clear on the judge's findings, what one would ordinarily expect someone to do, checking as he slowed down at the lay-by, and checking again.  It is clear he was also driving with care as regards the person who was coming out of the car park.  Nonetheless he was, for the reasons I have given, at fault in the limited respect I have found.  It seems to me, however, that any proper apportionment of liability must take into account the very different orders of negligence, which deserve far greater differentiation on the basis of causative potency and relative blameworthiness than the judge set out.

20.	I would for my part, therefore, set aside the apportionment made by the judge and apportion the liability in terms of 80/20 and not 66/33.  In that limited respect I would allow this appeal.

Lady Justice Black: 
21.	:I agree

Lord Justice Kitchin: 
22.	I too agree.

Order: Appeal allowed in part