Thursday, 27 February 2003

1. LORD JUSTICE SCHIEMANN: Before the court is a defendant's appeal from a judgment of Her Honour Judge Coates in relation to a traffic accident on the A23. The broad facts are not in dispute. The claimant was riding a motorcycle proceeding southwards. The road pattern at the place with which we are concerned consists of the A23 which from time to time meets traffic islands. The A23 is a dual carriageway and each carriageway has two lanes. From time to time there are roads proceeding from east to west which need to cross the A23; but the majority of the traffic travels, broadly speaking, from north/south, from London to Crawley. The particular roundabout with which we are concerned has coming in (if one is travelling southwards at 6 o'clock) the A23. The A23 leaves the roundabout at about 10 or 11 o'clock. The other two arms of that roundabout are to be found at 8 o'clock and at 2 o'clock. The motorcyclist was travelling on the outside lane. The defendant car driver was travelling on the inside lane. She entered the roundabout on the inside lane and hugged the inside lane. She thought that in order to continue on the A23, which is what she wished to do, she would have to leave the roundabout at an exit at 12 o'clock and was rather surprised by what eventually turned out to be the case, namely, that the exit between 10 and 11 o'clock was the one she should have taken. This point occurred to her as she was half-way across the mouth of that exit. By that time from her perspective it was too late to turn left; it would have involved a very sharp turn, and so she carried on. Unfortunately the motorcyclist, wishing to continue down the A23 and rightly assuming that the car also wished to do that but not realising that the driver of the car did not realise that the dual carriageway between 10 and 11 o'clock was in truth the A23, eventually touched the back of the car which, instead of going left as the motorcyclist had assumed, in fact went straight on round the roundabout. In those circumstances the judge held the car driver wholly free of blame.

2. The motorcyclist appeals, saying that this of a 50/50 case where each party was to blame for this very unfortunate accident. The judge in her judgment drew attention to paragraph 162 of the Highway Code which was then in force. It reads as follows:

"Unless signs or markings indicate otherwise, when taking the first exit [on a roundabout] signal left and approach in the left-hand lane. Keep to the left on the roundabout and continue signalling left to leave. When taking any intermediate exit do not signal on the approach to the roundabout. Approach in the left-hand lane or centre lane on a three-lane road or [on] a two-lane road you may approach in the right-hand lane if the left-hand lane is blocked. Stay in this lane until you need to alter course to exit the roundabout. Signal left after you have passed the exit before the one you want."

She then quotes from paragraph 163, which reads:

"In all cases watch out for and give plenty of room to pedestrians who may be crossing the approach and exit roads, traffic crossing in front of you on the roundabout, especially vehicles intending to leave by the next exit; traffic which may be straddling lanes, or positioned incorrectly, and motorcyclists."

3. In order to understand the judge's reasoning one must know that the claimant is called Mrs Grace, and the defendant car driver was Mrs Tanner. The judge said this:

"Mrs Tanner went on to the roundabout in one lane. She remained in that same lane, going round the roundabout and round the mouth of the A23.

... I am aware that it was dark or dusk, in

fact it was the 19th November, so it is most likely at that time of night to have been dark.

... It is quite clear that Mrs Tanner did

slow down, because she in fact stopped at the mouth of the roundabout

... in my judgment, the mechanics of this

collision are that the motorcycle went into the side of the car.

In evidence Mrs Grace said that she assumed

that Mrs Tanner was going to turn left, and acted on that assumption. In my judgment, she clearly gave no thought to the possibility that Mrs Tanner was wrongly positioned, and that the assumption she relied on is unwise in this type of situation. It is something that the Highway Code quite clearly cautions against.

I find that Mrs Tanner missed her turning, as

many people do. She kept to her same lane. She made no sudden movements. It would be nonsense, in my judgment, to say that everyone who misses their turn off a roundabout is negligent. It does not make any sense. It would have been negligent to have moved and swerved violently into the right-hand lane, but that did not happen. Mrs Tanner kept her course.

In my judgment this accident occurred because

Mrs Grace did not keep a proper look out; that she was going too fast to be able to control her vehicle in the circumstances of the road configuration and what was going on; she failed to keep a proper watch on the vehicle on her inside, and she made an assumption which, in my judgment, it is dangerous to make when on a roundabout.

Therefore, I find that this claim fails."

4. For my part, I accept entirely what the judge says in relation to people missing turnings. Of course it is not negligent to miss a turning. Further, I also accept that it would have been negligent to have moved and swerved violently into the right-hand lane. But that did not happen. The question really is whether in the light of what did happen it can be shown that Mrs Tanner was in part negligent.

5. Mr Walsh, who appears for Mrs Grace, accepts that Mrs Grace was negligent and does not challenge the judge's findings in that regard. But he says that this is a case where Mrs Tanner was equally negligent and the judge was wrong in her approach to the matter, the judge not having really addressed the issue as to whether this might not be a case where both parties were negligent.

6. Mr Walsh submits that Mrs Tanner must have seen the exit which was in truth the A23 exit, but because it came between 10 and 11 o'clock rather than 12 o'clock, she concluded, erroneously, that it was not hers, and so she kept going with a view to entering what she supposed would be a 12 o'clock exit. He submits that her negligence arose when she was going round the roundabout, and realised that there was an exit between 10 and 11 o'clock which she was not intending to take. At that point she should have looked, bearing in mind the possibility that there might be persons in the outside lane who would intend to take that exit. That action on her part should have started at round about the exit at 8 o'clock, which I have described. Had she looked she would have seen the motorbike coming up and would have been able to consider the fact that she was cutting across what in all probability would be the line of passage which the motorbike was intending to take.

7. The argument on the other side put forward by Mr Jones is first, that paragraph 162 of the Code indicates that the motorcyclist was in the wrong lane for the manoeuvre that the motorcyclist intended to make. He submits that the reference in the Code to the left-hand lane being blocked is a reference to a permanent blockage, and that it was impermissible to move to the front of the right-hand lane with a view to overtaking people who were in the left-hand lane. For my part I would reject that interpretation of the Code. As it seems to me it is perfectly permissible to move in columns, as it were, in both the inside and the outside lane on to the roundabout in circumstances such as prevailed in the present case. But that was not his main submission. His main submission was that the judge was right to find that Mrs Tanner was not negligent in missing the turning (which in truth turned out to be the A23). This is very easily done; it was mistaken but not negligent. For my part I agree with that.

8. Mr Jones then said that if that be right it followed logically that any duty to look over to see who was in the outside lane did not arise until such time as Mrs Tanner was half-way across the mouth of what in the event was the A23. From that premise he then said that the facts showed that the accident happened within a fraction of a second at that point and therefore Mrs Tanner's negligence did not cause the accident. If I accepted that premise I would also accept the conclusion. For my part I would reject that premise. I think that Mr Walsh is right in saying that when you approach a roundabout and you go past the one exit and you see another dual carriage exit in front of you, which you think is not the one that you want, then in those circumstances you should be aware that there may well be somebody on the outside lane who will be wanting to go down that dual carriageway. It seems, quite understandably no doubt because Mrs Tanner was puzzled as to where the proper exit was and what to do next, that she forget to bear that possibility in mind. In my judgment that was negligent and in the circumstances a division of responsibility of 50/50 is the appropriate disposal in this case. The judge erred in not considering this possibility and not adopting it; therefore I would allow the appeal to that extent.

9. LORD JUSTICE JUDGE: I agree. This was an unfortunate accident. In my judgment both the claimant and the defendant made unintentional errors of judgment. They were minor mistakes. If only one of them had been mistaken there probably would not have been an accident at all. But these things happen. Two small errors resulted in a collision and unfortunate consequent personal injury.

10. The judge explained the mistake made by the claimant. I agree with her reasoning. The defendant's mistake needs a little closer analysis and I add words of my own simply because we are disagreeing with the judge's conclusion. The defendant had taken up position in the left-hand lane of a dual carriageway which would certainly have given the clear impression to any vehicles observing her that, whatever else she was going to do, she was not going to turn to her right. In fact the dual carriageway ran ahead at between 10.30 and 11 o'clock on the roundabout and when the defendant, slightly confused for understandable reasons, decided that she should not take the dual carriageway but continue all the way round the roundabout, she failed to appreciate the potential danger she presented to traffic which was or which might have been coming off the dual carriageway and using the roundabout, and which would have been lulled into the belief, from the position and movements of her car, that she, too, would be continuing down the dual carriageway. She was unaware of the motorcycle, or failed to become aware of it until too late for the collision to be avoided; and probably because of a certain amount of confusion about the route she should be taking, she failed to give her mind to other road users, including the unfortunate claimant, and continued on her journey which took her across the claimant's path.

11. For those reasons I agree with my Lord that this appeal should be allowed and that the apportionment should be equal between the two parties to the collision.

(Appeal allowed; there be an order for apportionment between the parties of 50 per cent each; the matter is to return to the county court; at first instance the Defendant is to pay 75 per cent of the Claimant's costs; as far as costs of the appeal are concerned the Defendant will pay the whole of the claimant's costs; in each case those costs are to be assessed if not agreed).