England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand London WC2A 2LL
		Tuesday, 11th December, 2007

J U D G M E N T

SIR THOMAS MORISON:

1. On 6^th August 2007 at the Chichester County Court His Honour Judge Barratt dismissed the claimant's claim for agreed damages of £9,693.10 arising out of a road traffic accident involving the claimant and defendant. The trial and this appeal of that order relate solely to the judge's conclusion on liability.
2. The accident occurred on 17^th March 2005 between the claimant's Jaguar X-type estate vehicle and the defendant's Peugeot 205 on a country lane on the outskirts of Midhurst at about 10 o'clock in the morning. It was a damp day and the road was therefore damp or wet. The lane in question, Hollis Lane, is a narrow one. The vehicles were travelling towards each other and the accident occurred about 10 to 15 metres short of the brow of a hill approached from the claimant's direction.
3. The judge described the road in this way:

"Hollis Lane [was] of such a narrow single track nature that it is impossible for two vehicles to pass each other at any relevant point over the brow of that hill over which the defendant's vehicle had just been driven at the moment of collision."

He further concluded that:

"The circumstances of this road were extremely demanding and testing of any competent and experienced driver".

He went on to hold that the topographical features of the route taken by the defendant in the immediate seconds that preceded her arriving at the summit of the incline from her direction, namely the opposite direction from that of the claimant, were testing and difficult in any circumstances.

4. The collision was of sufficient force to damage the smaller vehicle, the Peugeot, so that it was a write off, and to cause some personal injury to the claimant – damages, I think, for that item being agreed at £2,500 – and around £5,000 or £6,000 worth of damage to the claimant's car.
5. Before turning to the submissions in this case I should set out the way in which the judge arrived at his decision.
6. In relation to the claimant's driving, i.e. the driving of Mr Dawson, he made these findings:

"As he came along towards the brow of that hill he had observed the claimant's vehicle ahead of him. In consequence I find he had slowed to a point at which at the time of the collision he was, and had just become, stationary. He had also pulled over as far as he could to the left-hand side of the road, that is to his nearside."

7. He went on to find that the claimant's recollection and evidence of what he did, what he saw and what steps he took were all the steps that, in the circumstances, any reasonable and competent driver could have taken. He concluded in paragraph 22 that the claimant was at what the judge called "a stationary speed" at the time when the collision occurred.
8. In relation to the defendant's driving, he concluded that, on the evidence, she was keeping a proper lookout as she was driving. He concluded that she had given an honest, detailed and clear account, which was both credible and reliable of what had occurred. He accepted her evidence that from the moment when she saw the claimant's vehicle ahead of her over the brow of the hill – and it was at about the brow of the hill when she first became aware of the presence of the claimant – she immediately applied her brakes and applied them as firmly and as effectively as in all the circumstances any reasonable and competent driver could have done so. She effectively took emergency action in braking.
9. He took into account in assessing the driving of both parties that, so far as the defendant was concerned, she had only very recently passed her driving test. Secondly, she had only recently acquired the Peugeot 205. Thirdly, she was extremely familiar with this particular route, having been driving along it at the relevant time twice a day. He concluded that she was equally aware, as was the claimant, of the testing, dangerous and potentially risky circumstances that could arise along this route. She had made the ascent up towards the summit of the hill via a difficult right-hand bend, using her horn at the time, she said, when she had gone round that bend lower down the hill some distance away from the collision because she was aware that there were many accidents that happened and there was a need to take care.
10. Then in paragraph 23 of the judgment the judge concluded:

"For her part, she was travelling, as I find, something between 15 and 20 miles an hour having just come out of first gear. As she came over the brow of the hill, in what were in any event circumstances of visibility that were very limited, she observed ahead of her at a distance of something of the order of between 10 and 15 metres the claimant's vehicle ahead of her obstructing her onward journey. She immediately braked. She braked in such a way to bring her vehicle, if she could, to an immediate halt in all the circumstances of the case.

11. In paragraph 24 the judge said:

"Had the conditions been reasonably favourable, which I find they were not…there was likely to have been some debris on the side of the road…and the side of the banks, even the thinking distance available to her and the braking distance, she would have had something of three car lengths in order to avoid collision with the claimant. In my judgment, given the circumstances of that morning and given the difficult terrain that was not sufficient for her to have avoided a collision.

12. As I read that paragraph, the judge is saying that, even if it had not been damp, she was going at a sufficient speed which would not have enabled her to have stopped in time to have avoided the collision.
13. The judge then asked himself whether any reasonable, competent and careful driver could have avoided some sort of collision that morning, and he was driven to the conclusion that both drivers were behaving with reasonable competence and neither was at fault.
14. He had said previously in his judgment that the determining issue in the case for him to decide was whether, given the collision occurred at all as it did, it was the defendant who, unable to stop as she came over the brow of the hill before she came into collision with the defendant's vehicle, was driving too fast in the circumstances and failed to stop and indeed to manage her vehicle in such a way as to avoid the accident.
15. In paragraph 15 he asked himself the correct question:

"The question for me is whether in the circumstances she fell below that standard of care which is required of any competent driver in all the circumstances of this case."

16. As to her speed, he noted in paragraph 13 that the wheels of her vehicle locked as she braked and she was unable to bring the vehicle to a stop in time to prevent the collision.

"Therefore, when it was put to her in cross-examination, she admitted that, given there was a collision, to that extent she was driving in a way, so far as the description in the Highway Code is concerned, that she was not able to stop well within the distance in which she could see ahead of her."

17. The reference to the Highway Code is to paragraph 105, where, under the heading "Stopping distance", the Code provides:

"Drive at a speed that would allow you to stop well within the distance you can see to be clear."

There are then certain cautions in that paragraph. Over the page there are the stopping distances given for a vehicle travelling at 20 miles an hour, namely of 12 metres or three cars' length, including, that is, braking and thinking time.

18. In paragraph 18, when dealing with speed, the judge said this:

"I find on the evidence I have heard that there is no suggestion whatever in this case that the defendant was driving immediately before the collision in any way that can be described as too fast or without proper regard, care, thought or consideration for other road users in the description that she gave."

In paragraph 20 he said:

"Whatever the reason was, and the defendant said the reason that she used first gear was because the power of the car in the circumstances required her to do so, in no way does it suggest to me in any way that she was driving too fast as she ascended up to the brow of that hill."

19. In paragraph 26 the judge concluded, as I have said, that neither of the vehicles was travelling too fast. The defendant's was the only one which was moving at the time of the collision.
20. There has been a certain amount of debate before me as to the correct approach of this court in dealing with an appeal of this sort, i.e. a fast-track claim and where the single judge is dealing with the matter. I have been referred by Mrs Jacobs on behalf of the defendant respondent to this appeal to a number of authorities considering the powers of the Court of Appeal when hearing appeals against decisions at first instance. She submitted to me that, first of all, a judge in my position should be slow to interfere. Secondly, that it is not just a matter of judicial comity and respect for another judge that deference is paid to the decision of the trial judge.
21. I quote from Lord Hoffman's passage in the first case to which she referred me, namely Biogen Inc v Medeva plc at page 17 paragraph 10. Lord Hoffman said:

"The need for appellate caution in reversing the trial judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance…of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation. It would in my view be wrong to treat Benmax as authorising or requiring an appellate court to undertake a de novo evaluation of the facts in all cases in which no question of the credibility of the witnesses is involved. Where the application of a legal standard such as negligence or obviousness involves no question of principle but is simply a matter of degree, an appellate court should be very cautious in differing from the judge's evaluation."

22. She emphasised the point made by Lord Hoffman of the caution which a judge should exercise in cases where there was no defined legal standard but the judge below had to exercise a judgment, as in the case of negligence, and that before the court interfered it should find an error in principle, possibly even, she went as far as to suggest, that no decision of the sort that we have here could be overturned unless the court was satisfied that the judge below had misdirected himself. Here she correctly observed that the question which he asked himself was the correct question, having regard to the law of negligence.
23. I take the view that there is force in the points which she made and I would be very slow to interfere with this judge's evaluation of the evidence, but in this case there is really no dispute on the facts. The claimant's car was stationary. The defendant came up to the brow of the hill around 20 miles an hour as she got to the top and was unable to brake in sufficient time to avoid the collision with the claimant's stationary vehicle.
24. What is objected to on behalf of the claimant is the conclusion of the judge that, despite the provisions in the Highway Code, the defendant was unable to avoid a collision because she was driving faster than her visibility should have permitted.
25. It seems to me that the appeal should be allowed. There is, as I see it, a contradiction between an acceptance by the defendant and by the court that, at the speed she was travelling, she could not stop within the distance she could see ahead, and what the judge said in paragraph 18, which also conflicts with paragraph 11. It was the claimant's case precisely that the defendant was travelling too fast for the road conditions and not within her visibility, as the Highway Code suggested. He does not deal anywhere in his judgment with the point made in the Highway Code about speed and driver's visibility.
26. It is not for me to speculate how the judge came to reach his conclusion and whether he was influenced by the inadmissible evidence of a witness who arrived on the scene 20 minutes after the accident. As it seems to me, a driver who is driving along a single track road is obliged to drive at such a speed as would permit him or her to stop if the occasion demanded without causing damage to other road users. That means driving at a speed which would have permitted the defendant to stop and avoid the collision. At 20 miles an hour she would have covered about 10 yards in a second, and, allowing for thinking time and braking time, an accident with a vehicle coming the other way, even if stationary, was bound to occur. On the judge's conclusion, accidents without fault on this lane would be inevitable.
27. It seems to me that the judge was wrongly persuaded to the view that the defendant's driving was not negligent and that her speed was not excessive in the circumstances. He ought to have paid attention, in particular, to the provisions of the Highway Code, and if he was of the view that, for some reason or another, those provisions were not relevant or did not apply, he should have said so in his judgment and reasoned it out. If I had had to say the judge misdirected himself, I would respectfully have suggested that his failure to deal with this point amounted to a misdirection. I would simply say for present purposes that, in my judgment, the learned judge below, for perhaps understandable reasons, has fallen into error and reached a conclusion which cannot be allowed to stand.
28. Accordingly, I allow this appeal.