England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CAMBRIDGE COUNTY COURT
(HIS HONOUR JUDGE MOLONEY QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		15th December 2011

Lord Justice McFarlane:

1. On 6 March 2007, in the middle of the morning, a seven-vehicle shunt road traffic accident occurred on the eastbound carriageway of the A14 in Cambridgeshire. This busy road is, even for the traffic circumstances of that road, a busy junction at that point where the A14 and the M11 run along the same carriageway before splitting off at some point further on.
2. The collision occurred, insofar as it is relevant to the action that was heard by HHJ Moloney QC on 10 July 2011 in the Cambridge County Court, between the sixth and seventh vehicles in this seven-vehicle collision. The sixth vehicle was driven by Mr Fenwick on behalf of the company Bulmers Logistics Limited, who were the defendants in the County Court action. The seventh vehicle was driven by Mr Pease, who was the claimant. Mr Pease ran into the back of the Bulmers vehicle. Both vehicles were heavy goods lorries.
3. At trial the primary issue of fact was the one raised by Mr Pease, which was to the effect that the Bulmers vehicle had only come into the queue of traffic in the left hand A14 lane of this carriageway a very short time before the collision took place. In effect the case was that the Bulmers lorry cut in and that lead to Mr Pease being in a disadvantaged position when, moments later, the shunt took place, because no doubt of some incident involving the vehicles further up the queue.
4. The judge heard the evidence on that point, did not find Mr Pease to be a strong witness (that is paragraph 11 of the judgment) and he dismissed the allegation that Mr Pease was making about the Bulmers vehicle cutting in.
5. Thus the set up that the judge had to contemplate when looking at the position of negligence was of the defendant's vehicle being in an established queue of traffic in front of Mr Pease's vehicle for a period of time before the shunt took place.
6. The judge having heard the evidence concluded that the Bulmers vehicle, despite being established in the line as I have described, was nevertheless negligent. He found that the Bulmers vehicle was travelling too close to the vehicle in front of it. At paragraph 13 he says this:

"I am satisfied in the light of the evidence I have heard that he [that is, Mr Fenwick, the defendant's driver] was at fault in his emergency stop, that he was too close. It was not a case where something happened that necessitated an emergency stop, but he was otherwise driving safely. He was actually at fault, in having driven so close to the vehicle in front that, if any problem occurred with that vehicle or ahead of it causing it to brake, he would have to engage in an emergency stop himself."

7. The judge went on to find that Mr Pease for his part was also travelling too close to the defendant's vehicle and at too high a speed for him to protect himself in the event of the vehicle in front of him, for whatever reason, engaging in an emergency stop. The judge went on to find on the basis of those two primary findings that the defendant's negligence contributed to the impact between the two vehicles and he apportioned the blame for the conclusion to be equally placed with each of the two parties, therefore making a finding that there should be a 50 per cent contribution by the claimant but that the claim succeeded.
8. The defendant was dissatisfied with the judge's conclusion. Perhaps on a forensic basis the defendant might be justified in considering that they had succeeded on the factual dispute but nevertheless had been found to be liable.
9. The defendant therefore seeks permission to appeal from this court against the findings of the judge which are adverse to them.
10. There are two grounds of appeal argued on paper and then before this court by Mr Andrew Roy, who represents the defendant. The first ground is that the judge erred as a matter of fact and/or mixed fact and law in holding that the defendant's negligence was causative. No argument is raised that the judge was wrong to find that the defendant was negligent in the way that he was conducting himself but the lacuna, as Mr Roy submits, is to be found in the fact that the judge simply found negligence and did not go on to establish a causative link between that finding and the impact between the two lorries at the end of the queue.
11. The second ground of appeal is that, if ground one fails, in any event the judge was in error in apportioning damages as he did, in particular it is argued that in assessing contributory negligence the judge needed to apportion responsibility and also make a determination of the "respective causative potency" of the negligence that he has found and the criticism is that, whilst the judge found negligence on both sides, he did not evaluate at all how that negligence from each of those two parties had contributed in terms of its quantative value to the collision that actually occurred between those two vehicles.
12. Permission to appeal was considered initially on the papers by Dame Janet Smith on 23 September and, in the course of the reasons that she gave for refusing permission, she described her view of the collision and in particular stated that it was the defendant's emergency stop which created the problem for the claimant and that the judge was entitled to infer as he clearly did that, but for that negligence, there would have been no accident because if the defendant pulled up more gradually the claimant would have been able to do likewise. Of course that did not happen and the judge did not make a finding on that basis because, irrespective of the defendant's negligence, Mr Pease also was negligent; but Dame Janet Smith for those reasons refused permission to appeal.
13. This morning I have had the benefit of hearing Mr Roy orally renew the application and I am grateful to him for the clarity with which he has put matters both in terms of law and the facts of the case, but despite that clarity I am afraid I just do not understand how the proposed appeal on ground 1 can be got off the ground.
14. The defendant, in relation to ground 1, relies heavily on a Court of Appeal decision of Lindesay v Lamb & Tatner [2008] EWCA Civ 1143, a decision of a constitution in which Smith LJ, as she then was, was the lead judge. That was a similar collision involving three vehicles and the issue was being fought out between the two who were in a similar position to the two in the present case. The point being made is that it is not enough for the court simply to find that there was some negligence: there has to be a nexus, a causative nexus, between the negligence and what actually occurred on the road on the day to establish civil liability. Mr Roy has taken me to the detail of that judgment. I am afraid that, whilst I understand that judgment and understand the court's approach to the facts of that case, I do not consider that it establishes any principle of law or is of any direct relevance to the dispute in the present proceedings because at paragraph 39 of her judgment Smith LJ identifies the tipping point between negligence per se and negligence which is causative of the accident that had happened in the case of Lindesay by saying this:

"39. However, in my view, Mr Purchas was right to realise (as he plainly had at the hearing of this appeal) that the only way he could hope to show causation against the taxi driver was by showing that his negligence consisted not merely in failing to stop before hitting the Toyota but in performing an emergency stop when it was not necessary. He was in my view right to say that it did not matter much whether the taxi struck the Toyota or not. What mattered was whether the taxi driver unnecessarily put the vehicles behind him in difficulty."

15. Well that seems to me to be a statement which is contrary to the interests of the proposed appellant in this case. The case as the judge found it to be was not just that the Bulmers lorry driver was negligent and as a result he put himself in difficulties; the judge went on to find that that situation was causative of the impact between the Bulmers lorry and Mr Pease behind him. The judge found that not only was an emergency stop not necessary here but that the unnecessary emergency stop put the vehicles behind the Bulmers lorry in difficulty in precisely the way that Smith LJ describes in Lindesay. Whilst it is wrong to put too much emphasis on this, it is of note that the very same judge, now Dame Janet Smith, is the judge who had the case of Lindesay put before her on paper by Mr Roy in the course of his permission application and who nevertheless refused permission to appeal on paper.
16. Whilst as a matter of semantics the judge did not spell out the causative link that he had in mind between the two vehicles, he, as an experienced civil judge, clearly had a causative link in mind because of the findings that he made both as to liability and contributory negligence and it seems to me that it was not necessary for him to spell out the causative link. It speaks for itself: if you have two vehicles both travelling along a carriageway such as this with the vehicle behind albeit driving too fast and too close to the vehicle in front so as to be negligent and then a shunt happens and that part of the negligence in relation to the shunt is that the vehicle in front, the Bulmers vehicle, is itself travelling too close to its predecessor. It must follow as night follows day that that negligence, the Bulmers negligence, is, at least in part, causative of the impact with the vehicle behind which must have been almost instantaneous with the impact in front because Mr Pease, as the judge found, was so close to the tailgate of the Bulmers lorry.
17. And so although Mr Roy does his best, accepting as he must find the judge's findings against him, nevertheless to try to point to some absence of evidence or absence of analysis by the judge as to what the impact of that finding was, it seems to me that it is blindingly obvious that the judge had in mind that there was a causative link and it is the causative link that I have just described.
18. And so I find myself in total agreement with the view expressed by Dame Janet Smith that there is no prospect that the Court of Appeal would interfere with the judge's determination on this basis and I would therefore refuse permission to appeal on ground 1.
19. Ground 2 is put on a different basis. It focuses on the apportionment of the responsibility at 50/50 between the two drivers. Plainly the judge did not exert himself in delivering a detailed analysis of his conclusions on this point. They appear in the closing sentences of the closing paragraph of the judgment. The point taken is the one that I have described: that whilst the judge found both of them were at fault, he did not go on to analyse the causative potency of the roles that each took. It seems to me that the judge must have had these factors in mind and, although he does not use the phrase 'causative potency', he does say this at the conclusion of his judgment:

"Doing the best I can, it seems to me that each through his similar fault was equally to blame for the collision and that it is therefore proper that I should find that there was a breach of duty leading to Mr. Pease's collision with Mr. Fenwick's lorry, but that he made a 50 per cent contribution through his own negligence to the consequences of it."

20. Well that phrase "his own negligence to the consequences of it" seems to me to be, albeit in very short terms, the judge's acknowledgement of the fact that not only did he find them both to blame but he had to look at their contribution to the consequences of what occurred. Mr Roy submits that it was a rear end shunt; it must be obvious that the person behind is more at fault than the person in front. Well with respect to him that may be a common starting point or not, but it is not a given. This judge heard the evidence, this judge made his analysis of it and he decided that 50/50 was the right apportionment as between the one or the other. I cannot conceive that the Court of Appeal, were they to focus in on this aspect of the case, would feel it right to second guess the trial judge's evaluation on this issue. I therefore also take the view that there is no reasonable prospect of success in ground 2 and I therefore would refuse permission to appeal.

Order: Application refused