Many road traffic accidents involve collisions between two vehicles one of which has turned right from a minor road onto a major road along which the other was proceeding. In the great majority of such cases the driver who comes from the minor road attracts most if not all of the blame. The present appeal is from a judgment and order of Swift J who held that, in the particular circumstances of this case, the negligence was entirely that of the claimant in the action, who had been riding his motor scooter along a major road when it collided with the car of the defendant as he turned right out of a minor road.

At about 9.40 on the morning of 26 June 2002, Mr Farley was riding his Vespa scooter along Bolton Road in the direction of Bury. Bolton Road is a major road and contains a number of junctions with minor roads. Mr Farley was approaching a point where, on his left-hand side, Glenboro Avenue meets Bolton Road. To his right, directly opposite Glenboro Avenue, another minor road, Procter Street, meets Bolton Road. Glenboro Avenue is 6.9 metres wide until it opens out at the junction. Entry of traffic from Glenboro Avenue onto Bolton Road is governed by double broken white lines, indicating that traffic emerging from Glenboro Avenue should give way to traffic travelling along Bolton Road. The total width of the carriageway of Bolton Road is 10.65m but there are cycle lanes, 1.3m wide, running along the edge of the carriageway in both directions. Thus, the vehicular carriageway is reduced to a total of 13 ft 4 inches or 6 ft 10 inches in each direction. In the centre of the carriageway there is a broken white line of the type which indicates that there is a hazard ahead. At the time of the accident the weather was fine and dry and visibility was good. The speed limit on that part of Bolton Road is 30 miles per hour.

As Mr Farley approached the junction with Glenboro Avenue, he was overtaking a long refuse wagon which was travelling in the same direction. It was indicating an intention to turn left into Glenboro Avenue. However, the refuse lorry was 8 ft 4 inches wide and 34 ft long and it would not have been able to effect such a left turn until a Ford Escort car, which was being driven by Mr Buckley, had turned out of Glenboro Avenue into Bolton Road. It was the intention of Mr Buckley to effect a right hand turn so as to travel towards Bolton. The driver of the refuse wagon, Mr Nieland, slowed down, thus creating a space between his vehicle and the one ahead of him and enabling Mr Buckley to drive out of Glenboro Avenue. Mr Buckley had paused at the junction until there was a gap in the traffic moving along Bolton Road in both directions, whereupon he drove out of Glenboro Avenue and across the front of the refuse wagon. As the front of his car advanced beyond the front offside of the refuse wagon, there was a collision between the car and Mr Farley’s scooter as it completed the overtaking of the refuse wagon. The point of the collision was above the offside front wheel arch of the car. The middle of the front wheel arch is 2 ft 10 inches from the front of the car.

In addition to those facts, which were largely undisputed at trial, the judge made the following findings:

The judge then expressed her conclusions on liability, dealing first with Mr Farley and then with Mr Buckley. Of the former, she said:

Turning to the driving of the car by Mr Buckley, the judge said:

The submission made on behalf of Mr Farley at trial was that Mr Buckley, on his own admission, was aware that vehicles did sometimes overtake slow moving traffic at the approach to this junction before turning right into Procter Street and that, being aware of that possibility, once he reached the offside of the refuse wagon, he should have stopped with only about 1 or 2ft of the front of his car protruding beyond the refuse wagon. Although he would not at that point have had any view down the far side of the refuse wagon, such a manoeuvre would have had the effect of warning an overtaking driver or rider of his presence, thereby enabling that driver or rider if not to stop, at least to swerve so as to avoid a collision. In other words, rather than emerging in a continuous movement, Mr Buckley ought to have engaged in what came to be described as “nose-poking”. The judge rejected this submission describing it as a counsel of perfection. She said:

On behalf of Mr Farley, Mr Redfern QC points to the difference between what Mr Buckley said he did and what the judge found. In evidence, Mr Buckley had described himself as “crawling out” and “edging forward bit by bit, rather than going at any speed, so that anything could see the front side of my car”. In other words, nose-poking. That account was rejected by the judge in favour of “one continuous movement at the same speed”, namely “about 5 – 8 miles per hour”. Mr Redfern’s central submission is a simple one, namely that if Mr Buckley had been driving as he described in evidence, he would not have been driving negligently and the accident would either not have happened or would have been less serious. On the other hand, upon the basis of the judge’s findings of fact, the driving was negligent. His ultimate submission is that both parties were negligent and that an apportionment on a 50:50 basis would be appropriate because each was culpably mindless of the foreseeable risk created by the other. The question for this court is therefore whether the judge was wrong to conclude that the approach contended for by Mr Redfern amounted to a counsel of perfection rather than indisputable evidence of negligence.

In my judgment, the conclusion of the judge was a permissible one. The finding that Mr Buckley was travelling at “about 5 - 8 miles per hour” is given a prominent part in Mr Redfern’s submissions. He suggests that such a speed cannot properly be described as “slow” because it approximates to a very fast walking pace or perhaps a child’s running speed. However, although this finding as to speed was made by the judge, it has to be seen in context. Its source was the evidence of Mr Nieland who had stated in his witness statement:

When cross examined, he was challenged as to his evidence of continuous movement but not specifically on his estimate of the speed. The judge also accepted the evidence of Mrs Finch to the effect that Mr Buckley was moving slowly and cautiously and the evidence of Mr Buckley’s wife that he was moving so slowly that she became concerned that the available gap in the Bolton-bound traffic might close. It is apparent from the several passages in her judgment to which I referred earlier that the judge was satisfied that Mr Buckley proceeded “slowly and cautiously”. That is a finding based on impressions gleaned from several sources. I would describe it as a firm or hard finding. Very often in cases such as this reliable impressions are more probative than arithmetical estimates. The finding of “about 5 - 8 miles per hour”, on the other hand, I would describe as a relatively soft finding. It is in terms an approximation and it is based on the observation of a person whose ability to give accurate evidence of speed was necessarily limited. All that Mr Nieland was able to see was a car travelling across the front of the refuse wagon from a standing start for a distance of less than two car lengths. That would enable him to give clear evidence of continuity of movement but any evidence he could give by way of an estimate of speed could not have the same cogency. It seems to me that the real issue in this case is whether it was negligent of Mr Buckley to effect a continuous movement rather than to nose-poke. On the particular facts of this case, I am satisfied that the judge was entitled to find as she did. Whilst it was foreseeable that a motorcycle might be overtaking the refuse wagon at modest speed with a view to turning right into Procter Street (as Mr Buckley accepted in evidence) or even to continue ahead with an appropriate degree of care, it was not foreseeable that a motorcycle would be overtaking the refuse wagon in the reckless manner found by the judge. Her use of the word “reckless” was apt. Moreover, given the short space between the offside of the refuse wagon and the centre of the carriageway, the difference between continuous movement and nose-poking in this case was extremely slight. It would be too much to expect a driver in the position of Mr Buckley to calculate to a nicety the number of inches which it would be prudent to nose-poke. Moreover, nose-poking carries risks of its own, in particular it may provoke an overtaking motorcyclist into a hazardous swerve.

It follows from what I have said that, in my judgment, the judge considered the implications of this case with conspicuous care and reached an appropriate conclusion. That is not to say that in all such cases a driver who fails to nose-poke or emerges continuously at “about 5 – 8 miles per hour” will avoid a finding of negligence. It is common ground in this case and bears emphasis that cases such as this are very fact-sensitive. On the unique facts found by the judge, I consider that she was entitled to find an absence of negligence on the part of Mr Buckley and I would dismiss this appeal.

I agree that this appeal should be dismissed for the reasons given by Maurice Kay LJ. I would like in particular to associate myself with everything he says in paragraph 11 of his judgment.

I also agree, and for the reasons given by Maurice Kay LJ. The judge was entitled to conclude that Mr Farley should bear full responsibility for the collision. The judge was entitled to regard his conduct in overtaking a slow moving line of traffic at 30miles an hour on an urban street as “reckless” and his lack of anticipation as showing a “serious want of care”.

My conclusion does not detract from or diminish the care to be expected from a driver turning right, as Mr Buckley was, in circumstances such as these. Great care is required.

The judge’s finding that Mr Buckley emerged from the minor road at “about 5-8 miles per hour” was based on a statement of Mr Nieland, the driver of the refuse wagon, which was not challenged in cross-examination, though contrary to Mr Buckley’s evidence. The finding is difficult to reconcile with her finding that Mr Buckley was proceeding “slowly and cautiously”, was “moving at a slow speed” and moved forward “only a short distance, if at all” after the collision, and with her overall assessment of Mr Buckley’s conduct.

This case is not authority for the proposition that emerging from a minor road at 5 to 8 miles an hour, in circumstances such as the present, is generally an acceptable manoeuvre.