Ogden & Chadwick v Barber & Higgs

On 28 June 2003 at about 12.45pm on the A675 Bolton Road, in the vicinity of Abbey Village in Lancashire, a most unfortunate accident occurred in which Mr Chadwick, a wholly innocent motor cyclist carrying his son as a pillion passenger on his Suzuki motorcycle, travelling along that road away from Abbey Village, was hit by a Kawasaki motorcycle being driven by Mr Barber in the opposite direction just as Mr Barber came over the brow of a shallow hill and entered onto a slight left hand bend. Mr Chadwick was badly injured in that accident. Driving behind Mr Barber was his friend Mr Ogden, also on a motorcycle (a Yamaha in his case), and he too was injured when he came over the brow of the hill straight into Mr Chadwick’s motorcycle lying in the road, and in that second collision he was thrown off his motorbike over the handlebars but fortunately managed to escape serious injury. In due course, both Mr Chadwick and Mr Ogden sued Mr Barber and another participant whom I have not so far mentioned, Mr Higgs. Mr Higgs was driving a Subaru motorcar ahead of the two motorcyclists, Mr Barber and Mr Ogden. So, to resume, Mr Chadwick was on his motorbike, going down the A675 away from Abbey Village and, coming in the opposite direction towards Abbey Village, just over the brow of the slight hill which separated them, was Mr Higgs driving the Subaru in the lead, followed by Mr Barber on his Kawasaki and Mr Ogden on his Yamaha.

All of those last three protagonists were youngish men. Mr Higgs was twenty-four years old and Mr Ogden and Mr Barber were also in their twenties. I have mentioned that these last two were friends: Mr Ogden was in the Royal Navy and Mr Barber was a Royal Marine. The judge, HHJ Tetlow, who heard both trials together, concluded that both Mr Higgs in the Subaru and Mr Barber on his Kawasaki were responsible for the injuries to Mr Chadwick and Mr Ogden. We are not on this appeal concerned with those findings of liability. What we are concerned with is the matter to which the judge had, at the end of his judgment, turned, which was -- as between Mr Higgs and Mr Barber -- what was the correct apportionment to strike in terms of their respective responsibilities, or liabilities, to Mr Chadwick and Mr Ogden?

The judge concluded that that exercise in contribution or apportionment should be determined as a split of 80% responsibility on the part of Mr Higgs and 20% responsibility on the part of Mr Barber. Against that background, this is Mr Higgs’ appeal with the permission of Janet Smith LJ against that apportionment. On his behalf Richard Hartley QC, who was counsel at the trial, submits that the judge gave inadequate reasons for his findings on apportionment and that behind, as it were, the curtain of that inadequacy lay the judge’s failure properly to take into account the serious aspects of Mr Barber’s driving that day. The circumstances of the accident were essentially as follows: a little before the accident just over the top of the shallow hill which I have described, Mr Barber, driving behind the Subaru, had tried to overtake the Subaru, but had been prevented from doing so when the Subaru had accelerated in response to that attempt to overtake. It is described at trial as the first overtaking. It was not an overtaking but an attempt to do so, and the evidence accepted by the judge was that, in response to the Subaru’s acceleration, Mr Barber on his Kawasaki fell back and tucked himself in behind the Subaru. We are concerned with the second overtaking. Mr Barber’s evidence about that, both in the first statement that he gave to the police a few weeks after the accident, taken (I think) at his hospital bed and at trial, was that he had attempted a second overtaking of the Subaru on the straight stretch of road that lay between two shallow hills.

Having been prevented from overtaking prior to the first hill, Mr Barber attempted to overtake on the straight stretch of road that lay between that hill and the next incline. That straight stretch of road ended with an arrow pointed on the road pointing inwards in a typical way, followed soon after by a solid white line on the side of the road that Mr Higgs and Mr Barber were travelling down. There was a distance of seventy-nine metres from the start of that solid white line to the brow of the hill, but a much longer distance along the straight road leading up to the beginning of that white line. Mr Barber’s evidence was that on that straight and well before the white line, he began a second overtaking manoeuvre but was prevented from overtaking by Mr Higgs in the Subaru, accelerating again. When, as a result of such acceleration, Mr Barber realised that he was running out of road space to execute his overtaking manoeuvre before he got to the white line and brow of the hill, he sought to drop his speed and thereby to pull back and tuck himself back in again on his side of the road in the way that he had managed to do at his first overtaking attempt. However, he was baulked or blocked in that attempt by Mr Higgs decelerating as well. The result was that Mr Barber was caught on the outside of the Subaru across the white line, on the wrong side of the road as he came to the brow of the hill. He could not fall back and tuck himself in behind the Subaru and, as he came over the brow of the hill, unfortunately, where that slight left bend began, he could not avoid running into Mr Chadwick on his motorcycle.

The best estimate of the actual spot of the collision was not far over the brow of the hill, more or less at the point where the white line on Mr Chadwick’s side of the road -- so that at that point there was a double white line -- ended and became a dotted white line; whereas on the other side of the road solid white line continued in the direction in which Mr Barber was going. So, the accident happened not far over the brow of the hill and into the slight left-hand bend, with Mr Barber just several feet over his white line on the wrong side of the road. The two motorcyclists were unable to avoid that collision. Now, that was Mr Barber’s account of the accident. As I have said, it was an account given originally to the police within a few weeks of the accident. It was the account that he gave in his much later witness statement made for the purposes of the trial, in 2007. It was also the evidence that he gave at trial and upon which he was stoutly cross-examined by Mr Hartley on behalf of Mr Higgs. Amongst the answers that Mr Barber gave in support of his case were, for instance, the answer on page 104G of the transcript, that it was “way before the bend that I tried the second overtake”, and also this passage:

It has been calculated for us that at a speed of, say, seventy miles an hour, the distance of seventy-nine metres from the beginning of the white line on Mr Barber’s side of the road up to the brow of the hill, would take a fraction short of three seconds to complete.

Now Mr Ogden, Mr Barber’s friend, gave evidence which was rather more mixed. His original statement given to the police on 2 July 2003 -- that is just a few days after the accident --gave no very great detail about the second overtaking manoeuvre. There was more about the first overtaking manoeuvre. But the effect of his statement to the police was that on the run-up on the strait towards the brow of the second hill, he hoped that Stephen (Mr Barber) would not attempt to overtake the Subaru as its driver, Mr Higgs, was not driving safely. He went on to give evidence, albeit very brief, to the effect that when the Subaru and Mr Barber were last seen before turning out of sight over the brow of the hill, Mr Barber was still behind the Subaru, tilting his wheel to prepare for the left-hand bend which emerged immediately over the brow of the hill. Mr Ogden’s witness statement for trial was to similar effect. In his evidence in chief at trial, however, Mr Ogden led different evidence which was much closer to the longstanding evidence of Mr Barber. He said at 191D to E of the transcript:

When he was cross-examined by Mr Hartley, however, with his advocate’s skill and the earlier written statements of Mr Ogden to assist him, Mr Hartley was able to bring Mr Ogden back to his original position on those witness statements, which was that Mr Barber was still behind the Subaru on the brow of the hill, tilting his wheel for the left-hand bend, which only started over the brow of the hill at which point he lost sight of them.

There was one other piece of evidence concerning Mr Ogden and that was given by a policeman who came to the scene after the accident, and that was that in conversation at that time Mr Ogden had told him (the police officer) that Mr Barber and Mr Higgs had been racing. The judge therefore had, on the evidence of the two friends, discordant evidence as to the immediate circumstances leading up to the collision. On Mr Barber’s evidence, he had started his overtaking manoeuvre well in time and had been caught alongside the Subaru -- some graphic evidence of that was given by Mr Barber of how he looked down and across at Mr Higgs in the Subaru while he was caught alongside him -- but because of Mr Higgs’ alternate accelerating and decelerating, he could neither get past him nor could he get back behind him. On Mr Ogden’s first and final account of the second overtaking, however, Mr Barber must have started his overtaking manoeuvre extremely late, already within the solid white line leading up to the brow of the hill, and was attempting an extremely foolhardy manoeuvre. So foolhardy that, in discussion between counsel and the judge, Mr Marc Willems, who represented Mr Barber at trial (as he does again on this appeal), accepted that if Mr Ogden’s evidence of Mr Barber being still behind the Subaru in the immediate approach to the brow of the hill was the case then:

I have concentrated on the evidence of Mr Barber and Mr Ogden because the evidence of Mr Higgs, the other main witness to the accident, lay in a very different compass indeed. Mr Higgs’ evidence was and had always been that he was completely oblivious of the accident when it occurred; that he was well in front of both motorcycles behind him; that there was absolutely no question of the accident happening at a time when Mr Barber was caught outside his Subaru on the wrong side of the road, and that he had continued driving down the road as before, without any knowledge of the disaster which had taken place behind him. As it turned out, he had stopped his car, he said, someway down the road and, as a result of a phone call that he had received and/or made, he had decided for business reasons (in order to check a document) to return from where he had come, and on that return had come across the accident. He had stopped briefly there but then had continued on his way. Mr Ogden gave evidence at trial that he had then asked him to phone for an ambulance but he had driven away; however not before Mr Ogden had managed to obtain and memorise the registration number of his car.

The judge had to decide what to make of that evidence of Mr Higgs and that took a major part of the trial and of the judge’s judgment, but he rejected it in its entirety and there is no question that arises out of that part of the judge’s judgment today. As for the evidence of Mr Barber and Mr Ogden, the judge recognised, in the same passage of the transcript of the proceedings from which I have just cited Mr Willems’ acknowledgment, that if the second overtaking manoeuvre had been left until just before the brow of the hill then everything would be down to Mr Barber. The judge therefore accepted that he would have to consider this evidence of the two friends and the conflicts within it carefully and form a balanced view of where it took him in due course. In his judgment the judge sets out fully the circumstances of the accident and then the evidence of the main protagonists to it. Thus, he dealt at length with Mr Higgs’ evidence, with Mr Barber’s evidence and Mr Ogden’s evidence. Towards the end of a long paragraph 8 dealing with Mr Ogden’s evidence, the judge said:

For reasons which I have given earlier in this judgment, the judge was correct to say that that evidence that I have just referred to, coming from Mr Ogden’s evidence in chief, was indeed inconsistent with what he had said previously so the judge had that in mind. Having set out the evidence with some thoroughness, the judge dealt with his findings -- beginning at paragraph 12 of his judgment -- with greater succinctness. First of all he had to make up his mind about Mr Higgs’ involvement, which he did. Then he came to his findings on the accident itself. He said this:

Pausing there, the judge is really commenting at that point on the difference between the evidence of both Mr Barber and Mr Ogden on the one hand and Mr Higgs on the other. The judge then continued:

On the part of Mr Higgs, Mr Hartley tells us today, as he had done in his skeleton argument, that he accepts that finding of fact. The judge then went on, having rejected Mr Higgs’ evidence and described the manner of his driving as irresponsible, to say the following at paragraph 17:

On this appeal Mr Hartley submits that that is simply inadequate reasoning, although on the findings of the judge a reader can well appreciate the seriousness of Mr Higgs’ driving and his fault. It is not possible, submits Mr Hartley, to evaluate the comparative seriousness of any fault in Mr Barber’s driving without knowing much more from the judge about the details of the second overtaking manoeuvre. For instance, when did Mr Barber begin his overtaking manoeuvre? Was it well back from the hill, along the straight road with only a dotted white line between the two halves of the road? Or was it, as Mr Ogden’s testimony might suggest, only done at the last moment within the solid white line, immediately approaching the brow of the hill, a blind spot in the road? So that is Mr Hartley’s first ground of appeal, a submission that the judge had given inadequate reasons for his conclusion on apportionment. Mr Hartley went on to submit -- and this is really his second ground of appeal, although it is the gravamen of his appeal as a whole -- that the judge was wrong to ignore the evidence of the seriously bad quality of Mr Barber’s driving and to down-play his responsibility for the accident. Thus Mr Hartley emphasises that Mr Barber must have been speeding. As for the car and the motorcycle, the evidence was that they were travelling about sixty miles an hour which was the speed limit on that road. Mr Barber’s speed in overtaking the Subaru must therefore have exceeded the speed limit, and indeed there was evidence from Mr Barber himself that he was planning to go up to eighty miles an hour in order to complete the overtaking.

Mr Hartley submits that in the circumstances of that day Mr Barber had no business to attempt to overtake that second time. He already knew Mr Higgs’ dangerous reaction to an attempt to overtake him; he could have waited and overtaken at a later opportunity. Then the critical submission is that his decision to overtake on that second occasion must have occurred as he was entering the blind left-hand bend and for these purposes Mr Hartley quoted and relied upon this passage, on page 212 of the transcript, where Mr Ogden was brought back to accept the implications of his written statements and gave the answer “yes” to the following question:

In my judgment, if that was the essential fact in the case -- and on Mr Hartley’s submission, as he has made clear to us today, that is, in his view, the one essential piece of evidence of the case -- the judge could not have concluded his judgment in the way that he did, for he must then have accepted Mr Willems’ clearly expressed concession that, on that factual basis, Mr Barber would not merely have been thus principally liable for the accident but would have been “wholly the author of his own misfortune”, to quote Mr Willems’ words to the judge. However, once the structure of the evidence before the judge becomes clear, it is, to my mind, also clear that the judge, despite his very brief conclusory reading, accepted the evidence of Mr Barber and (if one likes) the later evidence of Mr Ogden, but, I stress, accepted the evidence of Mr Barber, in reaching his finding cited at paragraph [11] above -- which, as Mr Hartley has said, he accepts and cannot challenge -- that Mr Barber would in all probability have been able to get back in behind the Subaru before the bend and thus avoided danger but for the fact that Mr Higgs had blocked him first by accelerating and then by varying his speed when Mr Barber wanted to slow down and get back in behind the Subaru. It follows that the judge accepted Mr Barber’s evidence as to where and how the second overtaking manoeuvre was attempted. The fact is, when one understands the evidence, that Mr Ogden’s evidence did not really add much to Mr Barber’s. Perhaps it could be said to detract from Mr Barber’s evidence, because Mr Ogden’s first and last word on the subject was that the manoeuvre had happened only at the very last moment. However, it is plain that the judge did accept Mr Barber’s evidence. When one reads some of the graphic parts of that evidence, of how Mr Barber was caught outside the Subaru, looking down on Mr Higgs driving the Subaru and wondering indeed what he wanted to achieve by his driving, and wondering also how he was going to extricate himself from danger, it is in my judgment not at all surprising that, once Mr Higgs’ evidence was out of the way, it was Mr Barber’s evidence that was accepted.

For Mr Barber to have attempted to begin to make an overtaking manoeuvre on the very brow of the hill, within a white line, would have been extremely foolhardy and, for that reason, less likely than the account that Mr Barber gave. In any event, whatever my personal judgment of that, there is the finding of fact of the judge as to the circumstances of that accident, and it is not challenged. Once the implications of that finding are fully appreciated, one then understands why it is that in paragraph 17 of his judgment the judge is relatively light upon Mr Barber’s negligence. The judge did not go all the way on the submissions that were made to him on the basis of Mr Barber’s account of the accident, that the matter was entirely the fault of Mr Higgs, because the judge accepted that Mr Barber, knowing what he knew of Mr Higgs’ driving as a result of his first overtaking attempt, should not have attempted a second overtaking on that stretch of road. So Mr Barber was liable to Mr Chadwick and Mr Ogden and for a share in the apportionment between him and Mr Higgs. Nevertheless, in my judgment the judge was, for reasons which can be sufficiently obtained from his judgment, entitled to say that the greater share of responsibility, both causative and culpable responsibility, was that of Mr Higgs. Mr Higgs’ driving was truly very, very bad indeed. He was prosecuted for dangerous driving and sent for trial but acquitted, but it was a very, very serious piece of bad driving on the judge’s findings. It was, moreover, a deliberate attempt to keep a motorcyclist on the wrong side of the road approaching a blind brow and bend in the road. On the other hand, Mr Barber’s fault was the comparatively less serious and merely negligent as distinct from deliberate fault of attempting any overtaking manoeuvre at all, albeit, on Mr Barber’s evidence which the judge accepted, he started it well before the white line. Mr Higgs had shown on the first overtaking manoeuvre that he was prepared to accelerate away from the Mr Barber, but he had not shown on the first overtaking manoeuvre that he was also prepared to decelerate in order to prevent Mr Barber falling back and getting in behind the Subaru. Thus, on the first occasion, that is exactly what Mr Barber was able to do. On the second occasion, because of the express findings of the judge, Mr Higgs not only accelerated but also decelerated and blocked Mr Barber off, preventing him getting back in. That is why the accident occurred.

It is clear authority, arising from cases on the bad manoeuvring of ships rather than cars and motorcycles, that, although this court might (for good reason, possibly as a result of a disagreement as to law or fact) disagree with a trial judge’s view on where the fault principally lay, nevertheless, if once that first overall view had been properly taken by the trial judge it was not for this court, save possibly in a wholly exceptional case, to second-guess a trial judge’s precise apportionment. Thus there is this famous passage from the speech of Lord Wright in British Fame (Owners) v MacGregor (Owners), The MacGregor [1943] AC 197, HL at 201:

On that basis it does not matter what my or my Lords’ view, as to a precise apportionment might be where in the circumstances described in my judgment, Mr Barber shared for his part in the total fault of the situation. Once the judge was clear on the evidence before him that the principal fault lay with Mr Higgs, he was entitled in his judgment or assessment, or even discretion as it is sometimes called, to find the precise level of apportionment according to his own judgment. He heard all the evidence; he saw the witnesses. The decision was for him. I have not been able to find in the submissions -- clear and cogent as they may have been, or at any rate Mr Hartley’s view of the trial -- any reason to fault the judge’s final assessment of his apportionment. Nor have I been able to say that the judge was wrong to have accepted Mr Barber’s account of the circumstances leading up to the accident, or to say that he was wrong on that basis to find that the principal fault lay with Mr Higgs. I would therefore dismiss this appeal.

I agree, albeit with some reservations which, unusually for this sort of issue on apportionment, I feel I should express. It seems to me that Mr Barber’s decision to persist in trying to overtake Mr Higgs after the latter’s first unsuccessful tactic preventing him from doing so was highly negligent, bordering on -- to use my Lord, Rix LJ’s expression -- foolhardy. I say that in the following circumstances: 1) Mr Barber’s second attempt to overtake was on an approach to a hump in the road clearly followed by a left-hand bend, both of which unsighted him to Mr Chadwick and any other traffic approaching the hump and bend in the opposite direction; 2) Mr Higgs’ dangerous and perverse tactic on the first attempt at overtaking was, on Mr Barber’s own evidence, to cause him some concern that any further attempted overtaking would be met by the same or similar and potentially dangerous obstruction to his manoeuvre; 3) nevertheless, Mr Barber determined to repeat his attempt to overtake as both vehicles closed on the brow of the hill and the bend; 4) he did so starting from the speed of about sixty miles an hour, necessitating an increase to a speed in the region of seventy to eighty miles an hour, shortly before or by the time he reached or would reach the brow of the hill; 5) he did so when the width of his lane of the road would require him (as an overtaking motorcyclist) to move onto or over the centre line of the road into the lane of such oncoming traffic as there might be approaching the brow and bend with the Subaru; 6) he did so when it must have been plainly obvious to him -- as the photographs in evidence demonstrate -- that his approach to the brow of the hill would become governed by a left-hand arrow painted on the road and a solid line governing him and a broken white line governing oncoming traffic: a clear indication, if not otherwise plainly evident, that this was no place for him to overtake, and especially so when combined with his knowledge that he had in front of him an obstructive and unpredictable driver as Mr Higgs had just demonstrated himself to be.

All those factors must of course be put together with the undoubtedly disgraceful and grossly dangerous conduct of Mr Higgs thwarting Mr Barber’s second attempt at overtaking by even more dangerous conduct than he had exhibited in the first attempt, this time leading to the double accident, the subject of these proceedings. It fell to the judge in considering apportionment of liability between Mr Barber and Mr Higgs to balance the relative fault and causative potency of their respective driving. The judge fixed, as my Lord has recorded, on 80% to Mr Higgs and 20% to Mr Barber. He did so in a way and with such brevity as to suggest that he may have given insufficient consideration and weight to Mr Barber’s serious shortcomings and to his causative contribution to the accident. Although a fair reflection of that balance might require an apportionment favouring Mr Barber to a greater extent than the judge considered, I have some doubt, speaking for myself, as to whether 20% was not rather on too low a scale or, to adopt Rix LJ’s words, “rather light”, but that is not enough to unseat the apportionment fixed on by the judge for the reasons that my Lord has given.

Given the self-restraint this court should exercise in matters of apportionment, I agree with Rix LJ on that account, at any rate, that it would be quite wrong for this court to interfere with the judge’s apportionment, and it is on that account that I concur in the dismissal of the appeal.

I also agree. Rix LJ has analysed the facts in some detail. As I understand it, in this court both parties accept the judge’s findings of fact and indeed his findings of fault. The sole question is whether the court should interfere with his apportionment of 80/20 on the basis that he should have held Mr Barber more at fault. As Rix LJ has indicated, it is well settled that in such circumstances this court should not interfere save in exceptional circumstances (see MacGregor, especially per Lord Wright at page 201 and Viscount Simon at page 199). There are many authoritative statements to like effect in the books. Some judges might well have held that Mr Barber was more than 20% at fault. However, the question is one of relative fault, which of course comprises both blameworthiness and causative potency as between Mr Barber and Mr Higgs.

Given the judge’s conclusions of Mr Higgs’ deliberately accelerating to prevent Mr Barber from overtaking him, then deliberately decelerating to prevent him from getting back in behind him and, doing so as both were approaching the top of a hill and a blind bend at considerable speed, there is, in my judgment, no doubt that Mr Higgs was very seriously at fault, both in terms of blameworthiness and causative potency. Mr Barber was also at fault because, as the judge held, he should not have embarked on a second overtaking manoeuvre when both he and Mr Higgs were approaching the hill and bend at speed and when he knew what Mr Higgs was capable of as a driver.

Nevertheless, it appears to me that when a comparison is made between Mr Higgs on the one hand and Mr Barber on the other, the judge was fully entitled to hold Mr Higgs substantially more at fault than Mr Barber. The precise apportionment of fault was a matter of judgment and balance for the judge. His apportionment of 80/20 was in my opinion within the permissible range of apportionment which a judge could properly adopt. It follows for that reason, which I think is essentially the same as that of both my Lords, I agree that this appeal should be dismissed.