Damian Thomas Sip v Adrian Marsh & Anor

This is an appeal by the Claimant Mr Sip against the decision of His Honour Judge Glen (‘the Judge’) dated 9 April 2024 in the County Court at Southampton which dismissed his claim against the First Defendant Mr Marsh and the Second Defendant insurers arising from this road traffic accident on 1 October 2018 in which Mr Sip suffered a spinal cord injury with very serious and permanent consequences. The trial was on the preliminary issue of liability. Permission to appeal was granted by Robin Knowles J.

In his written and oral submissions Mr Norton made clear that the appeal involves no challenges to the Judge’s findings of fact. The challenge is to the Judge’s conclusion that no liability for the accident falls on Mr Marsh. Accordingly, the essential factual summary can be taken from the judgment.

On 1 October 2018 at about 10.20 a.m. Mr Sip was riding his Yamaha motorcycle in an eastbound direction along Quarry Lane Chichester when the collision occurred with the Mercedes Sprinter van driven by Mr Marsh which was in the course of turning out from a side road on the north side of Quarry Lane in order to proceed westbound along that major road. The side road was from the trade entrance (‘Gate 3’) to builders merchants called Covers, which Mr Marsh had just visited in his van. The van had a load of building materials, including timbers which protruded about 1m from its rear doors.

Quarry Lane serves a mixed commercial/industrial area with numerous businesses in industrial estates on its north side. The speed limit on this road was 20 mph.

As Mr Sip rode along Quarry Lane, he passed two other entrances to Covers’ premises, described in the trial as Gate 5 and Gate 4. He then came to a moderate left-hand bend. At the end of that bend was Gate 3.

Based on CCTV evidence, the parties’ respective experts in image analysis were in agreement that:

By reference to CCTV evidence (which I have seen), the Judge said that this showed Mr Marsh first stopping to report to the security hut at Gate 3; then moving forward in his van; then pausing to allow a pedestrian to pass in front of the van; and then pulling forward into a stationary position short of the give way lines at the mouth of the exit onto Quarry Lane, but with the van angled towards the intended direction of travel, i.e. westbound. Mr Marsh is then seen to wait for a car to pass. He then pulls out and as his van is straightening up largely, but not completely, in the westbound lane, Mr Sip and his motorcycle can be seen sliding separately along Quarry Lane and into contact with the van. This was as a result of Mr Sip having fallen from his motorcycle after braking. The motorcycle struck the front wheel of the van. Mr Sip slid under the van and became jammed beneath.

The parties’ respective experts in accident reconstruction were in agreement, amongst other things, that:

In his evidence, Mr Marsh said that he thought he was closer to the give way lines than the agreed evidence showed. His driver’s side window was wound down. He agreed that being closer to the give way lines would have given him a better view round the bend, but said that he had held back a little to allow for the possibility of a large heavy goods vehicle coming down the road. In cross-examination he agreed that if he had not been across the eastbound lane he would have stopped, but in the circumstances as they happened he believed that trying to get across would give the motorcyclist the best chance. He agreed that if he had been at the give way lines and had heard or seen the motorcycle he would not have pulled out; and that if he had heard or seen the motorcycle very shortly after moving off he would have stopped. He said that he was about halfway across the eastbound lane before he heard the motorcycle, and saw him, as he put it, a millisecond later.

As he had stated in his police interview, Mr Marsh agreed that people did ‘zoom along’ Quarry Lane not always in accordance with the speed limit; in re-examination he said that by this he meant people doing 30 or 40 mph.

In his statement to the police, Mr Sip had said that he would know the difference between riding at 30 or at 50 mph, and in his evidence he adopted that as what he believed was his speed. He said that he had told the police that he was going slightly over the limit because he was not sure. He said that he had seen the van move to the give way lines and stop. As a result he had moved towards the middle of the road to leave room. At the last moment the van pulled out and, as he was unable to steer past it, he braked and the motorcycle fell on its side.

In his submissions to the Judge on behalf of Mr Sip, Mr Norton acknowledged that it could not be said that his client had been without fault but contended that the primary liability lay with Mr Marsh. If Mr Marsh had been positioned at the give way lines as he ought to have been, rather than between 2 and 2½ m back, he would have been going more slowly when he first saw the motorcycle; and in consequence would have been able to stop, rather than finding himself in the dilemma of what to do in the situation which in fact faced him. This was strengthened by the fact that he had heard the motorcycle momentarily before he had seen it.

On behalf of Mr Marsh and insurers, Mr Dignum KC submitted to the Judge that Mr Sip had been driving at a reckless speed; and that this was a folly which could not reasonably have been anticipated by Mr Marsh. Even if it could be said that stopping short of the give way lines was negligent, it was not causative of the accident. Further, the Court should not place blame on a motorist who, when faced with a split-second dilemma, chose the course which with hindsight was the least appropriate: see e.g. Lambert v. Clayton [2009] EWCA Civ 237 at [28].

As to the facts, the Judge concluded that he had not found Mr Sip to be a convincing witness. This was not a case of inadvertent speeding. He must have accelerated at an extremely rapid rate to have attained the speeds recorded on the cameras at Gate 5 and Gate 4. He could not have been unaware that he was doing that. The reality was that he was riding grossly in excess of the speed limit in circumstances where there was an obvious risk of vehicular or indeed pedestrian traffic emerging from one of the numerous exits and accesses along the way. He must bear primary liability for the accident.

As to Mr Marsh, the Judge found him to be a good witness who had given an accurate account of what he remembered with no obvious attempt to diminish his responsibility for what had happened, as demonstrated by his willingness to accept propositions put to him in cross-examination by Mr Norton. The question was whether, on the basis of this account, he ought to bear some of the blame.

Turning to the allegation that Mr Marsh had been negligent in positioning his van at a distance from the give way lines, the Judge noted the angled position of the van and proceeded on the basis of the distance (i.e. 2-2.5m back from the give way lines) which had been agreed between the experts. The Judge acknowledged that Mr Marsh knew that the bend would limit his view; that the further out he was, the better he would be able to see; and that there was a danger of traffic coming from the west in excess of the speed limit.

Having considered these matters, the Judge concluded that it was not negligent ‘per se’ for Mr Marsh to have positioned the van as he did. He was entitled to hold back a little from the give way lines, for the reasons which he had given. Thus: ‘In the real world of driving, he was entitled to position the van as he did, having regard to what he could realistically expect to come round that bend’.

In the alternative, the Judge concluded that Mr Marsh’s positioning of the van was not causative of the accident. As was common ground between the accident reconstruction experts, Mr Marsh could not have seen the motorcycle even if he had been positioned right on and square to the give way lines. That was because of Mr Sip’s positioning in the road.

The Judge accepted Mr Marsh’s evidence that the noise and the sight were a millisecond apart. However Mr Marsh would have already come some distance out into the eastbound lane when he heard the motorcycle. Further to the agreed expert evidence, the difference, between a view of about 60m if Mr Marsh had been an unexceptionable 1m behind the give way lines and Mr Sip’s position at the point of exit, was about 30 to 40m. Even travelling at 65 mph it would have taken Mr Sip over 1 second to travel that distance. Furthermore, on hearing and seeing the motorcycle, Mr Marsh would have to perceive and react to what he had heard and seen. The experts were in broad agreement that the perception and reaction time for a normal driver lies between ¾ second and 1½ seconds. The Judge would adopt the expert Mr Spindler’s 1.12 seconds for this purpose.

In the light of that evidence, the Judge concluded that it was more likely than not that Mr Marsh would, by the time he had perceived the motorcycle and reacted to its presence, have substantially covered the width (c.3.6m) of the eastbound lane. He was thus truly hung on the horns of a dilemma. In those circumstances the decision which he made, namely to attempt to get over to the other side of the road, was an available and reasonable option taken in the heat of the moment. It was not a negligent decision.

Mr Norton founds his appeal on the proposition that it was negligent of Mr Marsh to have commenced his manoeuvre from a position between 2 and 2.5m back from the give way lines. This is because (a) this impeded his view to the right; (b) he knew or ought to have known that his vehicle was not fast, was long, and had an substantial load which protruded at the rear; (c) he knew that vehicles came along that road too fast; and (d) in that context it cannot have been the actions of the ordinary reasonable prudent driver to have stopped his vehicle some distance back from the give way lines and then pull forward in one manoeuvre. He knew or ought to have known that this would mean that his vehicle was a potential hazard to vehicles using the eastbound lane of Quarry Lane for a longer period of time. Further, and contrary to the Judge’s conclusion, Mr Marsh’s explanation for stopping short was no good reason. The concern about heavy goods vehicles had no weight in these circumstances where it was a sweeping bend, not a sharp bend.

Further, the Judge was also wrong to reject the contention that such negligence was not causative of the accident. This is because, if Mr Marsh had begun his manoeuvre at a point from the give way lines, (a) the motorcycle would have come into view at an earlier stage; (b) he would have been travelling more slowly when the motorcycle came into view; (c) as the accident reconstruction experts agreed, if Mr Marsh had seen the motorcycle during the early stages of the manoeuvre, his vehicle could have stopped short of the point of impact.

Mr Marsh could have stopped short because (a) as the accident reconstruction experts agreed, his view at the give way lines would have been just under 60 m; (b) 2.4 seconds of travel at 60 mph is 64m: see Mr Parkin’s expert report para. 12.3; (c) the skid marks showed that Mr Sip had moved towards the centre of the road; (d) a reasonable perception reaction time was 0.75 to 1.5 seconds; (e) the van would have been proceeding at a very low speed. In all the circumstances, the motorcycle would have come into view just under 2.4 seconds prior to impact, which would have provided ample perception reaction time and the ability to stop and avoid collision.

Mr Norton submits that this ability to avoid the impact would be further strengthened by Mr Marsh’s perception of the noise of the motorcycle immediately before seeing it. Thus: (a) if he had pulled up to the give way lines, then during that approach he would have heard the motorcycle and should have been highly aware of the risk of an oncoming motorcycle; (b) and therefore should not have pulled out. Alternatively, if he heard the motorcycle as he began to pull out, he ought to have been able to stop very quickly. His perception reaction time would have been quicker within the range of 0.75 to 1.5 seconds. Allowing a perception reaction time of about 1 second, and given the short distance he would have travelled and the fact of Mr Sip proceeding towards the centre of the road, the collision would have been avoided. Further, Mr Marsh had accepted in cross-examination that, in these posited alternative circumstances, he would have stopped.

In the course of argument in this appeal hearing, Mr Norton rightly accepted that Mr Marsh could not be criticised for turning out into Quarry Lane either (i) on the hypothetical basis of commencing the manoeuvre from a stationary position at the give way lines or (ii) in the actual event, where the manoeuvre had commenced 2-2.5m back. This is because, whatever the point at which the manoeuvre began, as he entered Quarry Lane Mr Marsh would not have seen or heard the motorcycle. Thus at the point of entry into Quarry Lane it appeared safe to proceed.

However Mr Norton submitted that this was immaterial. The true causative error went back to the stage when Mr Marsh chose to stop short of the give way lines. Thus a reasonably careful and prudent driver should not have stopped the van where Mr Marsh did, i.e. 2-2.5m behind the give way lines. For the reasons advanced, that was a negligent breach of his duty of care to other drivers on Quarry Lane including Mr Sip. Further, if Mr Marsh had stopped at the give way lines rather than further back, the van would have started its turning manoeuvre very slightly later; the motorcycle would have moved further along Quarry Lane and thus have more ‘quickly’ been audible and visible; Mr Marsh could and would have stopped in the eastbound lane; the motorcycle could and would have passed clear in the westbound lane; and the collision thus avoided.

Skilfully presented as they were, I am quite unpersuaded by these arguments. I see no basis to overturn the Judge’s conclusion that Mr Marsh bears no liability for this accident.

In agreement with Mr Dignum, I think it necessary and helpful to start with certain fundamental propositions on the law of negligence which are reaffirmed by the Court of Appeal in the road traffic case of Sam v Atkins [2005] EWCA Civ 1452; [2006] R.T.R. 14. In that decision, May LJ stated at [14]: ‘It is commonplace to analyse a cause of action in negligence compartmentally, examining a duty of care, breach of the duty, causation and damage. That is convenient, but technically wrong. Negligence is a composite concept necessarily combining all the elements I have mentioned’. Citing authority at the highest level, he continued at [16] that in each case ‘The question is whether the relationship between the claimant and the defendant is such that it imposes on the latter a duty to take care to avoid or prevent the loss which has in fact been sustained. That question subsumes the question whether the acts or omissions of the defendant caused the damage relied on. If they do not there is no negligence.’

Turning to the case in question, May LJ therefore observed that, having found that the claim failed on causation, the Judge was ‘technically wrong’ to have held the defendant driver to have been negligent. Thus, on the findings of fact made by the judge, ‘…the defendant owed no duty to the appellant to avoid the injury which in fact occurred when the appellant walked into the path of the defendant’s vehicle. Putative negligence in other circumstances which might have caused injury to another claimant did not justify a finding of negligence in breach of duty to the appellant on the facts as found by the judge in this case’: [17].

Next, I take account of the useful summary of the principles from authorities on road traffic cases set out in the decision of HHJ Stephen Davies (sitting as a judge of the High Court) in AB v. Main [2015] EWHC 3183 (QB) at [7]-[15]; see also Chan v Peters [2021] EWHC 2004 (QB) per Cavanagh J at [17]. Of particular relevance to the present case, these include that the standard of care is that of the reasonably careful driver, armed with common sense and experience of the way other road users are likely to behave. If a real risk of a danger emerging would have been reasonably apparent to such a driver, then reasonable precautions must be taken; if the danger was no more than the mere possibility, which would not have occurred to such a driver, then there is no obligation to take extraordinary precautions. The defendant is not to be judged by the standards of an ideal driver, nor with the benefit of ‘20/20 hindsight’.

Further, where one party’s dangerous driving had created an emergency for the other, that other is not to be held negligent because in the split-second available he took what turned out to be the least favourable decision. Further the Court cautioned against the making of findings of fact with a degree of precision not warranted by the evidence and amounting to no more than ‘guesstimates’ which could lead to an unjust result either way: Clayton v. Lambert [2009] EWCA Civ 237; [2010] R.T.R. 3.

Setting these principles against the facts as agreed and as found by the Judge, I do not accept that Mr Marsh’s decision to stop 2-2.5m short of the give way lines was contrary to the standards of a reasonably careful driver in the particular circumstances.

First, stopping short of the give way lines was not a once-and-for-all decision which governed the whole of the intended turning manoeuvre. It was but one part of the whole process, which required a continual reassessment of whether it was safe to turn out, up to and including the moment when the van was at the give way lines. There was no necessary requirement to stop at the give way lines or at any stage; it all depended on the circumstances. When he did set off from the position 2-2.5m back, Mr Marsh would have to keep checking that it was safe to move out. This he did; and, to all appearances, it was safe to do so.

Secondly, Mr Marsh had no reason to expect a vehicle to be proceeding along Quarry Lane at the grossly excessive speed of this motorcycle. As he stated and was accepted by the Judge, he was aware of the risk of vehicles ‘zooming along’ at speeds of 30-40 mph; but that was no reason to expect the speed of Mr Sip in this case. Conversely, if having reached the give way lines Mr Marsh had seen the motorcycle, he evidently would have stopped. This is not a case where the driver has set off, before reaching the give way lines, at such a speed that there is no time to stop when those lines are reached; nor where the nature or load of his vehicle would have prevented him doing so. On the contrary, Mr Marsh set off slowly and carefully - and so continued as he entered the junction.

In these circumstances, I see nothing in the fact of stopping short of the give way lines – or of setting off from that stationary position - which could justify a finding that Mr Marsh was in breach of a duty of care to Mr Sip nor therefore liable in negligence for the collision. Put another way, there was no reasonably foreseeable danger to Mr Sip (or any other road-user) in Mr Marsh acting as he did. Thus, to adopt and adapt the language of Sam v. Atkins, Mr Marsh owed no duty to Mr Sip to avoid the injury which in fact occurred as a result of the speed with which he was riding his motorcycle.

In these circumstances, the reason for Mr Marsh’s decision to stop short of the give way lines has no real significance. In any event, I see no basis for disagreement with the Judge’s conclusion that Mr Marsh’s stated and truthful reason for holding back – the possibility of heavy goods vehicles coming down the road – was reasonable. However the bend may be described or perceived, Mr Marsh knew the road and its traffic and made an unexceptionable judgment to hold back.

The same essential reasoning applies to the case on causation. Analysis of what would or might have happened if Mr Marsh had started his manoeuvre from a stationary position at the give way lines, i.e. with himself seated 1m back from the lines, is immaterial. What matters is the situation at the point when the van crossed the give way lines and entered Quarry Lane. At that point, from Mr Marsh’s point of sight and hearing, it was safe to do so. The sole cause of the accident was Mr Sip’s grossly excessive speed.

In any event, even if causation is considered on the hypothetical basis advanced on his behalf, its evidential foundation is too frail and speculative to succeed. First, it depends on the premise that the turning manoeuvre would have commenced very slightly later than it did. However, as Mr Norton acknowledged in argument, that takes no account of the hypothesis that the van would not have stopped short of the give way lines. Secondly, the whole hypothesis depends upon just the sort of unwarranted over-precision against which the Court has cautioned. It also gives too much weight to Mr Marsh’s acceptance in cross-examination as to what he ‘would’ have done in the hypothetical circumstances. This would equally have been a split-second decision; and there is also force in Mr Dignum’s point that it would be counter-intuitive to stop in the same lane as the approaching motorcycle.

Mr Sip deserves the greatest sympathy for the permanent and life-changing injuries which he has suffered. However, for all these reasons and in agreement with the Judge, I see no basis to attribute any responsibility for this accident to Mr Marsh. The appeal must therefore be dismissed.