B e f o r e :
LORD JUSTICE DILLON
LORD JUSTICE NOLAN
and
LORD JUSTICE ROCH
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SMITH |
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Appellant |
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CRIBBEN |
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Respondent |
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Computer Aided Transcript of the Stenograph Notes of:
John Larking, Chancery House, Chancery Lane, London, WC2.
Telephone: 071 - 404 7464
Official Shorthand Writers to the Court
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MR. P. ASHWORTH QC and MR. A. PRYNE (instructed by Messrs. Argles & Court, Kent) appeared on behalf of the Appellant.
MR. W. CROWTHER QC (instructed by Messrs. Elliot & Co, London) appeared on behalf of the Respondent.
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HTML VERSION OF JUDGMENT
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DILLON LJ: I will ask Lord Justice Roch to give the first judgment.
ROCH LJ: The Snodland Bypass in Kent consists of sections of dual carriageway, each carriageway having two lanes and the carriageways being separated by a central reservation and parts of single carriageway with a single lane for traffic proceeding in each direction. The part of the Snodland Bypass with which this case is concerned runs north to south and is a part of the Bypass where the dual carriageway ceases and the road becomes a two lane road for vehicles travelling in a northerly direction.
On the 23rd June 1988, at about 8.30 in the morning, there was a collision between a green Renault 18 car, which was being driven by the respondent (Mrs. Cribben) in a northerly direction, and a Ford Granada car, which was being driven by Alan John Smith in a southerly direction. That collision was followed by a second and less severe collision between the respondent's Renault car and another Ford Granada driven by a Mr. Hyland, which was behind the Ford Granada driven by Mr. Alan John Smith.
Both Ford Granadas were on their correct side of the road and were being driven normally and properly. The Renault car was on its incorrect side of the road. The first collision occurred some seven yards or so to the north of the end of the central reservation.
Mr. Alan John Smith, the driver of the first Ford Granada, died from the injuries he sustained in the collision and one of his daughters, who was a passenger in his car, was injured. The respondent, Mrs. Cribben, also suffered serious injuries, including a closed head injury, which resulted in her becoming epileptic and, some two months later, suffering a stroke.
The mobile police who attended at the scene found nothing in the road conditions which could have contributed to the accident.
The change from dual carriageway to single carriageway was well signposted, there being an indication that the road was to narrow some 350 yards before the end of the dual carriageway; an "End of Dual Carriageway" sign about 180 yards from the end of the dual carriageway, and similar signs at 125 yards and 35 yards from the end of the dual carriageway. There was hatching on the road surface commencing some 105 yards from the end of the dual carriageway and, prior to that hatching commencing, there were two large arrows on the surface of the outer lane of the dual carriageway for vehicles proceeding north, indicating that vehicles in that lane should return to the nearside.
Expert examination of the Renault car revealed no mechanical failure which could have caused or contributed to the accident.
The respondent's account of the accident, in evidence to the trial judge as summarised in the judgment, was that she had initially been in the nearside lane of the dual carriageway. She had then come up behind and overtaken a lorry, and then returned to the nearside lane. She then came up behind a red Sierra motorcar driven by the appellant,
Mr. Kenneth Rodney Smith. The respondent said that she was travelling at about 65 or 55 mph when she caught up with the Sierra. She pulled out to overtake the Sierra before reaching a footbridge over the dual carriageway, which is approximately half-way along the dual carriageway, which itself measures some 1,000 metres from the roundabout at its commencement to the point where the road becomes a single carriageway.
The respondent said she got alongside the Sierra motorcar and then she became aware that the driver was laughing at her. She told the judge that she had a distinct recollection that a lady was sitting in the front passenger seat. She had enough room to overtake before the end of the dual carriageway, but the defendant's car went faster and faster, causing her to accelerate also. Both vehicles went from 60 to 70 to 80 mph. She could not complete the overtaking before the dual carriageway ended. She slowed down and tried to drive into the nearside lane behind the Sierra. She was not able to do so because, as she put it, "He came with me", by which she meant that the Sierra had slowed down so they were still travelling side-by-side. She would have been able to pull in behind him safely if he had not slowed down. She thought that he would let her in in front of him, but he moved forward again so that she was not able to overtake.
By this time she was very close to the end of the dual carriageway. She braked very hard and tried to steer to her left. She could not do anything else. She needed more road, but there was none. She had no recollection of what occurred next.
The Judge, in his judgment, records that in cross-examination the respondent conceded that there was no other traffic behind her or the Sierra, and there was plenty of road behind the Sierra for her to drive into. The respondent also acknowledged that she must have been overtaking on the hatching.
The respondent denied the suggestion that the emergency was entirely of her own making because she left it too late to overtake and there was not enough road for her to complete the operation.
That explanation for the collision was consistent with an oral statement made to a Miss Sheila Holman, who stopped to render assistance at the scene of the accident and who went to care for the respondent. It was also consistent with other accounts of the accident given by the respondent, for example an explanation given to her father whilst the respondent was still in hospital.
On the 28th September 1989, the widow and administratrix of the Estate of Alan John Smith commenced proceedings against the respondent for damages on behalf of herself, and their three dependent daughters, under the Fatal Accidents Act 1976.
Following the service of the respondent's defence to that claim, that action was amended to join the appellant as second defendant. That was the first time that any allegation had been made against the appellant.
In their defences the appellant and respondent blamed each other and, in addition, there were contribution proceedings between them.
On the 31st October 1991, the respondent, or more probably her insurers, settled the plaintiff's claim, leaving the contribution proceedings to be resolved between the respondent and the appellant.
On the 12th April 1990, a second action was begun by Annabel Catherine Smith, the daughter of Alan John Smith, who had been a passenger in his car at the time of the collision and who had sustained injuries. That action was commenced against both the appellant and the respondent.
The appellant and the respondent put in defences in identical terms on the issue of liability to those in and (i):
"Failing to give way to the respondent".
The Judge decided that the appellant contributed to the accident by his negligent conduct in these terms:
"The more complex question is whether the defendant also contributed to the accident by his conduct. I listened very carefully to the explanation he gave about not stopping after he was aware that an accident had occurred. I also paid attention to his daughter's evidence. I regret to say that I found his reason for not stopping totally unconvincing. It may well be that the memory of his brother's accident played some part in his reluctance to stop, but I do not believe that that is the total explanation. I consider it more likely that he thought he was in some way responsible for what had happened. I do not accept that he did not see the accident occur or realised it had occurred until he heard the bang. I consider that he saw more of the build up of the accident than he is prepared to admit. There are two possible explanations. First, he saw the plaintiff's car trying to overtake and realised it was going to be a very close manoeuvre for the plaintiff to complete. He accelerated, or he deliberately held station and speed so as to force her to pull in behind him so that he could continue in the lead on the single carriageway.
An alternative explanation is that he was paying so little attention to the road that he was unaware that the Renault was coming up behind him in the offside lane until it was alongside him. On his own admission he had not looked into his mirrors from the time that he left the roundabout. Thus he was oblivious to the presence and approach of the Renault in the outside lane. It would have been prudent to have checked in his mirrors to ascertain whether anything was behind him and where as he was approaching the end of the dual carriageway. If he had done so, he would have undoubtedly seen the Renault in the offside lane catching him up and been immediately aware that it was going to be a close call. The first time he was aware of the presence of Renault was when he looked to his right and through his driving door window. He then saw the plaintiff looking at him. In those circumstances, with his experience he, and indeed any reasonable driver, could and would have eased back slightly or braked lightly to let the Renault pass and move in in front of him as it joined the single carriageway. He did not do so but held his speed. The plaintiff was coming to the end of the hatching and in a desperate attempt the plaintiff was forced to brake sharp. I find that he realised that the situation had got out of control, that his conduct or failure to react had baulked the plaintiff, and that he was in some degree responsible. If he had stopped, he anticipated that someone, including the Renault driver if she were able to do so would accuse him of not letting her in".
The Judge found that was the dominant reason why the appellant had driven on.
The grounds of appeal can be summarised in this way. First, it is said that the Judge, having rejected the respondent's pleaded case, should not have found the appellant guilty of negligence on a basis that was never pleaded against him. Insofar as this is a technical pleading point, in my judgment it fails, because the Judge's findings were in essence pleaded in particulars (b) and (i) of paragraph one of the respondent's amended Statement of Claim.
But there is more substance, in my view, in an alternative way of putting this particular point, which is contained in the 5th ground of appeal. That is that it was the respondent's case that, had the appellant continued to drive at a steady pace in the nearside lane, she would not have encountered any difficulty. The Judge's finding was that the appellant was negligent because he continued to drive in the nearside lane at a steady pace.
The second ground of appeal is that the Judge found that the respondent placed herself in a position of danger by attempting to overtake the Sierra at a point where the Sierra had either to slow down for her to overtake safely before reaching the single carriageway, or the Sierra had to accelerate to allow her to return to her nearside and, having realised that she had got herself into that position, the respondent chose to continue with the overtaking on the assumption of the appellant having seen her and being prepared to slow down to allow her to return to her nearside before reaching the single carriageway and then, when the appellant did not slow down, the respondent braked heavily and lost control of her car.
The Judge should have found that the respondent was solely to blame for the resulting collision. She had created a dangerous situation and then, when she appreciated that she had created a dangerous situation, she took the obviously dangerous option of going on with her overtaking and relying on the appellant slowing down, instead of taking the obviously safe course of slowing down and falling in behind the appellant's car. Then, the respondent having made a dangerous situation even worse, she braked heavily and lost control of her car.
The third ground really summarises the second. It is that the Judge's finding that the appellant was negligent was inconsistent with his findings concerning the respondent's driving.
The next ground of appeal is that the Judge ignored the fact that if the appellant reacted by slowing down there was, dependent on the respondent's driving, just as much chance that she would be baulked if, as she said in evidence, he slowed down at the same time. The Judge was wrong to find that, by continuing at a steady speed, the appellant had been negligent. It is said that, on the contrary, by continuing at a steady speed the appellant acted reasonably and carefully because that left it in the hands of the respondent to take the proper decision to nullify the dangerous situation that she had created. Had the appellant altered his speed he might have exacerbated an already dangerous situation.
Mr. Crowther, for the respondent, submitted that the appellant admitted, during cross-examination, that he had not checked his rear view mirror whilst driving along the dual carriageway, and that he did not see the Renault car until shortly before it went out of control, and that those answers fully justified the Judge's finding that the appellant had failed to keep a proper lookout and was, therefore, negligent in that respect.
Mr. Crowther reminded us of the provision of the Highway Code: "Use your mirror often so that you know what is behind you".
Mr. Crowther then submits that, had the appellant been aware of the approach of the Renault in the outer lane, he would have seen that the Renault was attempting to overtake at a point close to the commencement of the hatched area and, in those circumstances, the appellant, as a reasonably careful driver, should have taken his foot off the accelerator and allowed the Renault to pass in safety.
Mr. Crowther draws our attention to another provision of the Highway Code: "Allow others to overtake you if they want to".
He submits that the appellant's failure to act in this way fell short of a proper standard of driving and was causative of the collision, because the respondent would have continued without having to brake or swerve and consequently lose control of her car had the appellant slowed down.
Mr. Crowther submitted that these were the Judge's findings, and that they were fully justified by the evidence. The hatched area commenced 105 yards before the end of the central reservation which is the normal stopping distance, including thinking distance, for a vehicle travelling at and,
"The plaintiff must be mistaken in her recollection that the passenger was travelling in the front passenger seat".
The Judge then went on to reject the plaintiff's account of the events leading up to the collision.
The essence of the respondent's case was that the appellant accelerated and decelerated so as to keep the respondent in the outer lane until the point was reached where the respondent had to brake violently and, at the same time, swerve to her left to avoid danger and that, in doing that, the respondent's car had gone out of control. That is to say, the essence of the respondent's case was that it was the appellant who created the dangerous situation by deliberately driving dangerously. Had the appellant driven properly at a steady pace no danger would have occurred.
Mr. Crowther recognised that this was the respondent's case because, at the end of his submissions to the Judge, he urged the Judge to find the appellant wholly to blame.
That case would have explained the respondent's starting to overtake the appellant's car before the hatching began and, having failed to overtake as the end of the dual carriageway, approached and then having to brake and swerve. But that was the case the Judge had rejected.
Further, it is my view that the Judge should not have found, in the light of the evidence of the eye witnesses and his findings of the vehicles' speeds, that the vehicles were abreast before the hatched area was reached and that the appellant had looked directly at the respondent through his driver's window.
On the other hand, had that happened when the vehicles were still short of the hatched area, the appellant's failure to see the Renault at an earlier stage becomes irrelevant, in my view, because at that moment both drivers had ample opportunity to avoid any danger materialising.
There were two situations postulated by the Judge in that part of his judgment in which he found the respondent partly to blame. In the first one the Judge used the words that, "... the appellant had accelerated or, at the very least, held his speed so as to force the respondent to pull in behind him". The use of the word "force" is, in my view, unhappy because it reintroduces the respondent's pleaded case of the appellant deliberately preventing the respondent from overtaking him, which the Judge had already rejected. If the appellant accelerated or held speed it could equally have been because the appellant considered that the respondent would not be so foolish as to try to complete her overtaking, but would try to draw in behind him.
In my judgment the Judge, having rejected the respondent's primary case, should have been slow to find that the appellant had been negligent because he continued on his course at a constant speed instead of slowing down.
In the circumstances that arose in this case the appellant was entitled to say, in my view: "Any overtaking driver could see my course and speed, could see the road markings and drive his or her vehicle accordingly. Once I start to vary my speed then the risk of collision between my car and the other vehicle is increased." The point was put in this way in the skeleton argument on behalf of the appellant: "The Judge, in finding that a failure on the part of Kenneth Smith to slow down contributed to the accident, failed to take account at all of the equally valid postulate that Barbara Cribben was more likely to be baulked by an unknown and unpredictable reaction on the part of Kenneth Smith than by his continuing at a known and steady speed which enabled her to make a firm assessment of her position and decide what to do. Accordingly, no cause or link was established on the evidence between the manner of Kenneth Smith's driving and the accident". If the appellant had seen the Renault approaching in his rear mirror the question has to be asked: Why should he not have continued on the same path at the same speed? Is there any obligation to watch the rear view mirror so that a driver can slow down so that the car approaching from the rear will not be overtaking at a place of danger?
In my judgment, that places too high a duty on the reasonable driver. The onus upon the driver in the appellant's situation is to drive normally at a proper speed and on a proper course. The ordinary reasonable driver is not to be expected to anticipate that the following driver will drive dangerously and to extricate that driver from the dangerous situation that driver creates. In this case the evidence indicated that the respondent not merely created a dangerous situation but then persisted in it by choosing what was, in my view, an obviously dangerous course of trying to go still faster and complete the overtaking before the dual carriageway ran out.
In short, having rejected the respondent's evidence the Judge, in my view, should have accepted the evidence of the appellant and Mr. Draper: that the respondent attempted to overtake at a very late stage; achieved a small overlap just before or just after the hatching commenced; later thought better of it; dropped back, and braked and swerved in a way which caused her to lose control of her car. In those circumstances, the appellant's driving, on the same course at the same speed, cannot be criticised in my judgment.
With reluctance in view of the respondent's injuries, I would allow this appeal.
NOLAN LJ: I agree and have nothing to add.
DILLON LJ: I also agree. The appeals are allowed. Set aside orders of the Judge. It would be right to declare that
Mrs. Cribben was solely liable for the accident, and dismiss her action against the appellant and the third party proceedings. Mrs. Cribben to pay appellants costs of all three actions and third party proceedings. Not to be enforced without leave in respect of her own action against the appellant so far as she has legal aid. The same order against Mrs. Cribben in respect of costs of appeals against the order below. Fix Mrs. Cribben's contribution to appellant's costs of appeal against the order at nil. Order nisi against Legal Aid Board to pay appellant's costs of appeal in which Mrs. Cribben had legal aid. Legal Aid taxation.
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