Grealis v Opuni

LORD JUSTICE MANTELL: This is an appeal from the order of His Honour Judge Cooke sitting in the Central London County Court on 6 March 2002 by which he dismissed the appellant's claim for damages arising out of a traffic accident.

As found by the judge, the essential facts are as follows. First, describing the scene, the judge found that the A5 is a major thoroughfare running north to south through the centre of Edgware. There is a point at which it forms a crossroads with Camrose Avenue to the southwest and Deansbrook Road to the northeast. North of the junction the road is named High Street, Edgware and to the south Burnt Oak Broadway. The two relatively minor roads are slightly offset, with Camrose Avenue being further to the south. Traffic at the crossroads is controlled by traffic lights which do not incorporate separate "right turn" or filter signals for vehicles on the A5 coming in either direction which wish to make a right-hand turn into Camrose Avenue or Deansbrook Road. There are, however, separate filter lanes on the offside of both south and north bound carriageways to accommodate such traffic. The two carriageways of the A5 either side of the junction are separated by island bollards.

The scene being set, the judge turned to the circumstances of the accident. He found that some time after 11 pm on 14 July 1997 the appellant - then an 18 year old student working part time as a pizza delivery boy - was riding his employer's moped along the A5 in a southerly direction intending to turn right into Camrose Avenue in order to make his last delivery of the evening. The traffic lights were on green and there were already some other vehicles in the filter lane of the A5 south bound carriageway waiting for an opportunity to make the same right-hand turn into Camrose Avenue. Instead of remaining in the turning lane, or the filter lane, either behind or alongside the other vehicles, the appellant effectively jumped the queue by passing to the right of the centre bollard before commencing his turn into Camrose Avenue only to come into collision with a Seat motor car being driven across the junction in a northerly direction. The judge also found that the appellant was probably travelling at about 10 miles per hour and the Seat - driven by the defendant in the action and respondent to this appeal Mr Seth Opuni, with his wife as front seat passenger - was travelling at between 37 and 39 miles per hour or possibly a mile or so faster. This particular stretch of road was governed by a 30 miles per hour speed limit. The judge further found that the collision was between the front of the Seat and the rear wheel of the moped and that, most probably, the collision would have been avoided if the respondent had been travelling at a slower speed and certainly had he been within the prescribed speed limit.

The argument advanced to the judge by counsel on behalf of the appellant is summarised at page 10 of the judgment:

The judge said that he did not consider the case to be "as simple as that" and, for reasons which will follow, eventually rejected the argument. He referred to a number of authorities, and to Barna v Hudes Merchandising Corporation and Another [1962] CLR 321 in particular. In that case a motorist had been travelling at between 30 and 40 miles per hour in a 30 miles per hour area and had collided with a car being driven out of a side road. The County Court judge exonerated the defendant from all blame. The Court of Appeal, so it appears from the brief report, stated that -

Having so directed himself as to the law, the judge went on to apply the law as he understood it to the facts of the case. This is what he said at page 11:

I would hold that the judge was right in his exposition of the law. Was he right in its application? I think not.

Although it does not necessarily follow that negligence is to be imputed to a driver who breaks the speed limit, there is no doubt that evidence the speed limit was being broken as with breaches of the Highway Code may provide evidence of negligence. Here the respondent was driving in excess of the speed limit and the judge found that had he been driving within the speed limit the accident would, most probably, have been avoided. In other words, speed was a cause of the accident.

That is not the end of the matter. The judge gave a number of illustrations where it could be said that speed had been a contributory cause of an accident but the driver could not be fairly held to blame. Here, however, the respondent was approaching a junction where he could see that there were some vehicles waiting to make a right-hand turn which would involve crossing his path. He knew, or ought to have known, that they were not subject to any halt sign. The lead vehicle was simply waiting for a sufficient gap in the traffic to make the turn in safety. In such circumstances a prudent driver ought to anticipate that the leading vehicle, at least, might misjudge the speed of the on-coming traffic and attempt to make the turn when there was insufficient space or time for the manoeuvre to be executed successfully. So the prudent driver would or should adjust his speed so as to be able to stop in such an event. In the circumstances with which the court is concerned that would impose no great hardship because, as the judge has found, it would only have been necessary to comply with the speed limit for that stretch of road. In those circumstances not to comply with the lawful limit would be negligent.

So I respectfully differ from the judge, as I may do with propriety given that I am simply drawing inferences from the primary facts which the judge has found.

But I do agree with the judge that the appellant must nevertheless bear heavy responsibility. He was cutting the corner and crossing the path of on-coming traffic. It would also seem that he was not keeping a proper look-out. In my view he should bear 80 per cent of the blame for what happened.

I am conscious that I have only dealt with one of the three grounds of appeal. The other two challenge the judge's findings as to the speed at which both the appellant and the respondent had been driving prior to the collision. In particular, it is suggested that the evidence ought to have led the judge to find that the respondent had been driving at 40 miles per hour or above immediately prior to applying his brakes. For my part I would not be inclined to disturb the judge's findings of fact with regard to that, nor do I think it makes a scrap of difference to the merits of the case or to the outcome of this appeal. Similarly, the speed at which the moped was travelling would appear to be entirely irrelevant to the outcome.

Accordingly, I would allow the appeal to the extent indicated.

LORD JUSTICE MANCE: I agree.

LORD JUSTICE KENNEDY: I also agree. It seems to me that there was much to be said for the conclusion reached by the trial judge. However if one were to ask an independent observer whether the defendant was entirely free from blame for this unfortunate accident, given that he was travelling at a speed in the region of 40 miles per hour, well in excess of the speed limit in the conditions outlined by my Lord, it seems to me that the answer would have to be in the negative.

Accordingly, I agree with the proposal of my Lord.