Tolley v Carr & Ors

21 November 2006 is a day that David Tolley will never forget.

At about ten past 7 in the morning, he left his home in Wallasey to drive his usual route to his work as an engineer in Hooton. He filled up with petrol, and then made his way to the M53 motorway, joining the south-bound carriageway towards Chester. On the way, the weather was turbulent. He drove through a hailstorm; but that had finished by the time he approached junction 3, the junction with the A552. By that time, it was about 7.30; and the accident reconstruction experts agree that the road surface conditions would have been “slippery” (Joint Memorandum, paragraph 1.26). It was still twilight, with about twenty minutes to go to sunrise. The street lights were on, and cars had their headlights on

Mr Tolley was driving in the nearside lane when a BMW car in the middle lane driven, by Mr David Raywood, overtook him; but, just as that car was past him, it went out of control and spun, colliding with the central reservation before cutting across Mr Tolley’s path and ending up more or less on the hard shoulder. Mr Tolley broke hard to avoid colliding with that vehicle, and he then pulled up onto the hard shoulder himself to make sure that Mr Raywood, whom he did not know, was not injured. He saw that the BMW was jutting into the nearside lane a bit, and asked Mr Raywood to pull further over, off the carriageway, which he did. Mr Raywood appeared all right. He thanked Mr Tolley for stopping, and Mr Tolley then started to walk back to his own car to carry on with his journey to work.

However, whilst doing so, he saw that another driver had apparently lost control of her car, a black Vauxhall Corsa, this time on the north-bound carriageway. That car too had apparently spun round, and had stopped broadside to the carriageway at 90 degrees to the central reservation and with its front almost on the barrier which separated the two carriageways. Mr Tolley could see a female figure sitting in the driver’s seat. His immediate thought that she was in danger, positioned as her car was; and he shouted towards Mr Raywood, “We will have to get her out of there.” Mr Tolley looked down the south-bound carriageway to see if it was safe to cross. He said the traffic was by this time slowing down, either because drivers appreciated the danger - some had put their hazard lights on - or merely to look at Mr Raywood’s car which was on the hard shoulder. It was therefore straightforward to cross the south-bound carriageway. He did so, crossing into the central reservation; and Mr Raywood followed him.

Mr Tolley went over the central barrier and, he said, he looked down the outside lane of the north-bound carriageway to ensure that he could not see any traffic coming, before he went and opened the driver’s door of the black Corsa.

The driver was the First Defendant, Ms Claire Carr. She had lost control of her vehicle when driving at 65-70mph, and had come to a stop in the position I have described, with her driver’s door facing any oncoming traffic in the outside lane of the carriageway. After she had stopped, she had used her mobile phone to telephone the emergency services at 7.29am, and had also telephone her father who worked for the RAC. However, she had made no attempt to leave her car. Mr Tolley thought she must have been in shock. Having opened the door, he asked her if she was all right, and she said she was. Then he told her she could not stay in the car. He helped her from the car, taking her arm to steady her; and he moved her to where Mr Raywood was standing on the central reservation, the other side of the central barrier, just a couple of metres from the front of Ms Carr’s own vehicle.

At this point Mr Tolley thought that Miss Carr was reasonably safe. The central reservation was quite wide, and she was on the other side of the barrier from her own car - and she was with Mr Raywood. However, Mr Tolley regarded the black Corsa, as it was positioned, to be a danger to other motorists. The outside lane was approximately 3.2 metres wide, and the Corsa was about 0.9 metres into it, leaving about 2.2 metre width available to traffic in that lane. To put that into context, a Corsa is about 1.65 metres wide without (and 1.95 with) wing mirrors; the comparative measurements for a Transit van being nearly 2 metres and about 2.35 metres respectively. The Corsa was broadside on, partly across the outside fast lane of a motorway. Traffic was building up towards the rush hour, the weather conditions were certainly not good, nor was the light. The road was slippery. Mr Lee Shelley, who gave evidence before me, drove past the scene at that time. He said compellingly that he thought that it was “absolutely only a matter of time” before another vehicle hit the Corsa. That too was Mr Tolley’s view. He was concerned that, if left where it was, the Corsa would cause “carnage” (his word) in the form of a multi-vehicle pile up.

Mr Raywood, in unchallenged evidence which I accept, said that Mr Tolley asked Ms Carr “Is the car all right?” - and she said that it was - so he (Mr Tolley) said, “I will move it”. Mr Tolley said that the car had apparently suffered only minor damage, and appeared to be in a drivable condition.

It is obvious to us now that, in the cold light of this court three and a half years after the event, that Mr Tolley was putting himself at risk in attempting to move that car. The central reservation was wide enough to accommodate the width of the car. However, to have pulled the car off the carriageway onto the central reservation, Mr Tolley would, at least, have had to have got into the car (perhaps adjusting the seat to do so), start it up and reverse the car at least a little way to enable him to drive it off the carriageway and alongside the barrier. Mr Tolley did not know the car well, and so that would all have taken him a little while; and, during that manoeuvre, whilst he was by or in the car, he would inevitably have been at the risk of another car not seeing the Corsa (or not seeing it until it was too late to brake and avoid it), and hitting it. However, Mr Tolley said, that at the time, he had little thought for himself: he was simply concerned at the great danger he considered the car posed to other road users, positioned as it was.

He therefore determined to move the car. He said that, as he left Ms Carr and Mr Raywood so to do, he looked down the outside lane of the north-bound carriageway again, and he did not see any traffic coming in that lane. Again, to put that into context, the accident reconstruction experts are agreed that the distance that could be seen by someone looking down the motorway, as Mr Tolley did, was about 300 metres, which would be covered in 9.5 seconds by a vehicle driving at 70mph, and in 13.5 seconds by a vehicle at 50mph (Joint Memorandum, paragraph 1.37).

Mr Tolley said there were cars in the inside and middle lanes which were “driving at less than motorway speed”; and which passing the incident on the inside. They were slowing down, and bunching as they got to the scene. Some drivers were putting on their hazard lights, and, with those and with the brake lights that would have been visible, Mr Tolley thought that drivers would show caution as they would appreciate that something was happening on the road ahead of them. He said that at no time did he see any car in the outside lane.

Mr Tolley had no exact plan as to how best to move the car. He accepted that he did not know whether the keys were still in the car or whether (for example) Ms Carr had them. She was, of course, standing right by the car. He also accepted that, although acquainted with different sorts of car, he did not specifically know where reverse gear was in a Corsa, for example.

He said that, having looked down the carriageway and not seeing any cars approaching in the outside lane, he left the relative safety of the central reservation and went to the driver’s door of the Corsa, which he opened. He was at the door of the car, looking for the switch for the hazard lights (which were not on, and which he wished to put on), and/or the seat adjustment lever, in Mr Raywood’s words “half in and half out of the car”, when the Corsa was hit - first, a glancing blow by a green Vauxhall Corsa driven by the Second Defendant, Ms Helen Johnson; and then a very substantial blow by a Transit van driven by the Third Defendant, Mr Damian O’Callaghan. Mr Tolley can remember none of that - other than a short period feeling cold when he was lying on the carriageway after the impact, he can remember nothing until he was in hospital sometime later - but the impact of those vehicles, particularly the van, threw him some thirty five feet down the road, resulting in substantial injuries.

Most significantly Mr Tolley suffered a fractured spine at level T7-T8, and an incomplete spinal cord injury leaving him with permanent paralysis of his lower limbs: but he also had other injuries including two further breaks in his spine, multiple fractured ribs, a fractured humerus and acetablum, and multiple lacerations.

In this action, he claims damages in negligence for those injuries against Ms Carr, and the drivers of the two vehicles which struck the black Corsa as he was attempting to move it from the carriageway. The prospective damages have not yet been quantified, but on any view they will be very substantial.

The proceedings were issued in June 2008 and, until very recently, there were issues of liability as between all of the parties, including between the Defendants inter se. However, within the last fortnight or so, the Defendants have accepted that the Claimant is entitled to succeed on the issue of primary liability against one or more of the Defendants: and they have resolved all issues of liability for Mr Tolley’s injuries as between themselves. If I may be forgiven a moment’s nostalgia, the Defendants do not now seek to pursue any case that Mr Tolley’s action amounted to an actus novus interveniens, nor do they seek to invoke the maxim volenti non fit injuria to defeat Mr Tolley’s claim. Therefore, in this trial of liability before me now, the sole issue for determination is whether Mr Tolley is guilty of contributory negligence and, if so, the appropriate proportion of such responsibility.

In sensitive submissions on a challenging case, Mr Winston Hunter QC for the Defendants accepted that danger invites rescue and, if by one’s negligence a situation of danger is created for others, then one owes a duty to a person who may put themselves at peril in seeking to save those others from the risk they then face. Further, he accepted that the fact that a person who so puts himself in peril is not negligent merely by virtue of the fact that he puts himself at risk, even at grave risk: but, he submitted, such a person must take reasonable care for his own safety having regard to all the circumstances. If he does not, he is guilty of contributory negligence.

In this case, he submitted, Mr Tolley did not take such care. Having removed Miss Carr from immediate danger, “the reasonable protection of some unknown motorist who might come along and collide with the empty black Corsa… did not justify the action undertaken” by Mr Tolley, the exercise of removing the car from the carriageway being “wholly foolhardy” (Mr Hunter’s Skeleton Argument, paragraph 17). In the circumstances, he submitted that the Defendants were entitled to a reduction of their responsibility for Mr Tolley’s injuries - and, consequently, of course a discount in his damages - of between 25% and 33%.

The issue in any case where a person is injured whilst averting risks as a result of the negligent acts of another, is whether the rescuer has taken reasonable steps for his own safety, having regard to all the relevant circumstances. Consequently, each case will necessarily turn upon its own facts. However, the cases to which I have been referred point firmly and clearly to a consistent general approach of the courts in so-called rescuer cases.

Generally, members of the public are not under a duty to go to the aid of those who are in peril; whether that peril arises through their own fault, or through the fault of others, or indeed in circumstances in which no one maybe at fault at all. However, as I have said, in a phrase none the worse for having been borrowed from Justice Cardozo in Wagner v. International Railway Company [1921] 232 NY 167 at page 180, Mr Hunter accepted that “danger invites rescue”: or, in the words, of Morris LJ in Baker v T E Hopkins & Sons Ltd [1959] 1WLR 966 at page 975, “There is, happily, in all men of goodwill an urge to save those who are in peril”.

The common law acknowledges the actions of such men, which often involve bravery as well as bare humanity, in two ways. First, it imposes upon those who create such a danger a duty of care owed to those who go to the aid of people put at risk thereby, whether those who act are members of the professional emergency services or members of the public. Second, although of course relatedly, the law is slow and cautious in finding negligence in those who imperil themselves to save persons from risks caused by the negligence of others. That is frankly and properly acknowledged by Mr Hunter, who expressly relied upon Morris LJ in Baker v Hopkins at page 977, when that learned judge indicated that it was possible for a rescuer to be negligent, but he did so in restrictive terms:

“If a rescuer acts with a wanton disregard of his own safety it might be that in some circumstances it might be held that an injury to him was not the result of the negligence that caused the situation of danger.”

The use of a double conditional in that passage, and the reference to a rescuer acting with “wanton disregard,” at least reflects the generous approach of the common law to those who imperil themselves in order to save others from risks arising from the negligence of others, as do two further passages from that same case, as follows:

“Those who put men in peril can hardly be heard to say that they never thought that rescue might be attempted, or be heard to say that the rescue attempt was not caused by the creation of the peril” (per Morris LJ at pages 975-6).

“The burden of proof is on the defendants, and in order to succeed I think that they would have to show that the conduct of Dr Baker [the rescuer in that case, who died in the attempt] was so foolhardy as to amount to a wholly unreasonable disregard for his own safety” (per Willmer LJ at page 984).

The law recognises that a rescuer may, in effecting or attempting to effect a reduction of risk to others, imperil of his own life and limb: and the greater the risk to others that he is trying to avert, the greater the imperilment to his safety the law will accept as reasonable.

The law appreciates that a rescuer may act - and may feel impelled to act - under the pressures of the moment, where delay may be considered vital to the safety of those he is considering protecting from risk. It is not appropriate to subject a rescuer’s actions, or his subjective view of the risks involved to himself and/or to others, to fine scrutiny in the court room.

Further, it is the fact that a person imperils himself to avert the actual or perceived risk to others that is central to the assessment of the reasonableness of the act of that person. Therefore, although perhaps a plea of contributory negligence is particularly unattractive when the person imperilled is the very person whose negligence created that risk, who may have created the risk is less important than the position of the person put at risk. The horses that it escaped in Haynes v Harwood [1935] 1 KB 146 did not imperil their attendants, but general members of the public. Nor does it matter whether the rescue is, in the event, successful or not. Further, a rescuer may properly and reasonably consider that a person imperilled by the negligent act of one person may also - consequently and foreseeably - run the risk of being the object of future negligent acts of others from which he may require to be saved.

Similarly, in assessing whether the acts of a rescuer were in all the circumstances reasonable, it may not matter a great deal whether those acts were instinctive, or followed deliberation: either is regarded properly by the law as meritorious. As Lord Denning said in the Videan v British Transport Commission [1963] 2 QB 650:

“Whichever it is, so long as it is not wanton interference, if the rescuer is killed or injured in the attempt, he can recover damages from the one whose fault has been the cause of it.”

Mr Hunter submitted that, having regard to all of the circumstances of this claim, Mr Tolley did fail to take reasonable care of himself when he went back to the black Corsa to move it. Of course, in this plea of contributory negligence, the burden of proof is upon the Defendants to show that failure. It is a burden which, despite Mr Hunter’s efforts, in my judgment they have singularly failed to discharge.

In coming to that conclusion, I have particularly taken into account the following.

First, Mr Tolley was a witness of patent evidential honesty; indeed, his evidence was given modestly. Of course, even the most honest witness can be mistaken in the evidence that they give and, in assessing Mr Tolley’s evidence, I have to take into account that he was giving evidence about events that occurred just seconds before the impacts which left him with the appalling injuries that I have briefly described. That is an important factor to take into account in considering the reliability of his evidence. However, he was clearly a witness of integrity.

Second, I accept the evidence of Mr Shelley - that, in the position it was in, broadside across a substantial part of the offside fast lane of a motorway during an increasingly busy morning period, it was only a matter of time before another car or cars hit the black Corsa. Given its position, as Mr Tolley contemplated at the time, an accident could have involved “carnage”, i.e. multiple vehicles, with multiple victims suffering serious injuries or death. The risk of an accident was high, and the consequences of such an accident were potentially grave. The black Corsa consequently posed a very substantial hazard to other users of the motorway.

I do not accept the suggestion made by Mr Hunter on behalf of the Defendants that the car may not have amounted to a hazard, as evidenced (he suggested) by the fact that cars had successfully negotiated it for some minutes before Mr Tolley’s accident. Ms Johnson and Mr O’Callaghan, of course, both clearly failed to negotiate it. Drivers on motorways are not always as careful as they might be. In the circumstances of this case, it was foreseeable that those who were called upon to negotiate their way around the hazard of the Corsa might themselves be inattentive or even negligent. In all of the circumstances, in the position the Corsa was, a car or cars driving into the Corsa, and or swerving into other vehicles as a result of the Corsa’s position, was likely indeed; and, certainly, Mr Tolley cannot be criticised for considering that that car posed a substantial hazard.

Third, Mr Tolley was motivated solely by his perception of that hazard and his wish to reduce the risk that it posed. He had little thought at the time for his own safety. He considered that there was a substantial risk to other motorists, who continued to drive at relatively high speeds on that carriageway and he instinctively acted to reduce that risk by taking steps to move the car.

During the course of these proceedings, and particularly in his skeleton argument, Mr Hunter suggested that this was not entirely instinctive; because there appeared to have been about ten minutes between when Ms Carr telephoned the accident emergency services and when the accident involving Mr Tolley occurred. During cross-examination, Mr Hunter took Mr Tolley through what happened in those minutes, and there appeared to be some minutes unaccounted for, perhaps just before he went to move the car. Mr Tolley appeared to make concessions in that regard. However, I was not impressed with that evidence of Mr Tolley, as to its reliability or accuracy. Mr Tolley said that the entire sequence of events flowed as one, and he denied any significant period of reflection before going back to move the black Corsa.

I am satisfied that he acted more on his instincts to save the life and limb of other motorists, than otherwise. But, in any event, even if Mr Tolley had reflected on his actions that would not have been a matter for censure or criticism in the terms of this case. As I have indicated, courageous actions after deliberation, as well as actions moved by humanitarian instinct are meritorious. Bravery may be disclosed in either.

Fourth, Mr Tolley did not know that the emergency services had been called, as they had, by Ms Carr. He did not specifically ask her whether she had done so. However, he noted that there was none at the scene, nor could he hear any signs of their approach, for e.g. sirens. Mr Tolley cannot be criticised for believing that the risk to other motorists was acute, and the car needed to be moved quickly to reduce the risk that it posed. He cannot be criticised for not waiting for the emergency services. Of course, in the event, both Ms Johnson and Mr O’Callaghan struck the Corsa before any emergency services arrived.

Fifth, I am quite satisfied that Mr Tolley, prior to going back to the car with a view to moving it, checked the outside lane and saw no cars coming towards him in that lane; and, indeed, by the conclusion of the trial Mr Hunter did not suggest otherwise. I accept that Mr Tolley checked the traffic when crossing the south-bound carriageway; and also that he checked the outside lane of the north-bound carriageway before he got Miss Carr out of the Corsa, and again before he went back to the car to move it. Mr Tolley’s evidence in relation to that was compelling. The fact that that was not mentioned in his initial statement to the police or in the typed up version of that statement prepared later does not in my view significantly detract from the evidence he gave in his first statement, and then orally before me. In any event, Mr Raywood, a disinterested witness called by the Defendants to give evidence, was absolutely clear and firm. He said that Mr Tolley checked the outside lane before getting Ms Carr out, and before going back to move her car.

However, even if Mr Tolley had not checked, contrary to his own admission in evidence that it was vital he considered in all of the circumstances to make such a check, I would have been slow to have criticised him and slow to have said that that would have been fatal to his submissions on the issue of contributory negligence in all of the circumstances - just as Willmer LJ would have been reluctant to have criticised Dr Baker if he had not tied a rope around himself before lowering himself into the well where he died (Baker v Hopkins at page 984). However, given my findings that Mr Tolley did check, in my judgment that makes a contention that he acted with wilful disregard of his own safety, or indeed unreasonable in all of the circumstances, more or less untenable.

Sixth - and, again, a related point - I am satisfied that Mr Tolley conducted such a check with reasonable care, and did not see any car approaching the scene in the outside lane of the carriageway - because there was no car in that lane to be seen.

In respect of this, I found Mr Tolley’s evidence important - and compelling. He said that, when he looked down the outside lane, he specifically looked for any vehicles that were approaching the scene in that lane. The vehicles of both Ms Johnson and Mr O’Callaghan had their headlights lit. As Mr Tolley said in his evidence, most compellingly, he would not have begun the procedure with the car if he had seen one or more vehicles bearing down upon it in the outside lane. I accept that evidence. It is supported by - and, certainly, not contradicted by - the evidence I heard as to various speeds and timing.

Ms Johnson accepted that she was travelling at 65-70mph, and Mr O’Callaghan accepted that he was travelling at 50mph. There is some doubt as to whether both vehicles were at all relevant times in the outside lane - there was the evidence of Mr Shelley in his statement of 28 November 2006, that the white van was in the middle lane, at least at some stage - but, even if both vehicles were in the outside lane at all relevant times, at that speed, Ms Johnson would have taken under ten seconds to travel from the effective horizon line of sight to the scene. Her car was always the front vehicle, in the sense that there was no evidence that the white van was at any stage in front of her vehicle, and certainly not in front of it in the outside lane. .

Mr Hunter suggested that it was likely that there were less than ten seconds between Mr Tolley checking the outside carriageway and the first impact between Ms Johnson’s Corsa and the black Corsa. Again, Mr Hunter took Mr Tolley in cross-examination through these events second by second. During that cross-examination, Mr Tolley accepted that some of his actions, such as walking from where he checked the traffic to the car, would only have taken a matter of only a second or two. However, when it was put to him directly, he said he simply could not recall whether the period between the check and the impact would have been less than nine seconds, and he could not recall with any specificity at all what he did at the vehicle and how long he took in doing it before the accident happened. As I have indicated, Mr Tolley’s recollection of what he did from when he checked the road to when the Corsa was struck was understandably poor.

But, in any event, his moving to the car, and checking for the relevant controls, would inevitably have taken at least some little time. There is no compelling evidence before me that those actions took under ten seconds. In my judgment, the evidence, when taken as a whole, points the other way. On all of the evidence, I find it probable that the period of time was more than ten seconds.

Mr Tolley was therefore at risk from vehicles in the outside lane that were not visible to him when he looked in any event.

However, further, he said that when he looked at the traffic, not only were there no vehicles in the outside lane but also the traffic in the middle and inside lanes was moving at less than usual motorway speeds, and slowing and bunching as it approached the scene. He said that he recalled people who were driving past slowing and looking at him by and in the road. That evidence I accept. The fact that the vehicles in the middle and inside lanes were acting thus would in itself have been a warning to any vehicles following, in any lane, that there was something happening ahead. In assessing whether it was safe for him to move the black Corsa, Mr Tolley was entitled to take into account the general traffic situation, as well as the fact that there were no vehicles within sight in the outside lane.

In all of the circumstances, in my judgment, Mr Tolley cannot be criticised for the care he took in conducting the traffic check.

However, even if, contrary to my finding, he looked down the outside lane and, in the heat or emergency of the moment, he missed an oncoming vehicle, I do not consider that in all of the circumstances of this case even that would be capable of criticism; any more than if he had not checked at all (see paragraph 36 above). As I have said, the law is slow to criticise those who, under the pressure they find themselves in, seek to reduce the risk of harm to others, by placing themselves at risk, in circumstances in which time is or is perceived to be of the essence and the risks to those in endangered are or are perceived to be great.

For those reasons, in my judgment, Mr Tolley cannot properly be criticised for taking the actions he did take that day. Despite Mr Hunter’s able submissions, in all of the circumstances of this case, the Defendants have failed to persuade me that Mr Tolley acted unreasonably at all by failing to take reasonable care for his own safety in going to move Ms Carr’s black Corsa, as he did. The blameworthiness in this case does not lie at his door, but in my view entirely at the door of the Defendants who have accepted primary liability.

In his opening Mr Braithwaite QC for the Claimant said that, in doing what he did - getting Miss Carr out of the vehicle and then going back to move her car to avert the risk of a further possibly major accident - Mr Tolley acted as any decent man would hopefully act. That is a high aspiration for decent men. There are many decent men who I doubt are as brave as Mr Tolley. Not all even decent men would act “under the compulsion of instincts as a brave man” as he, and indeed Dr Baker (see Baker v. Hopkins at page 979 per Ormerod LJ), acted. But exceptional bravery is not the same as foolhardiness. On the basis of the evidence I have seen and heard, it is my clear and firm judgment that Mr Tolley’s actions on the 23 November 2006 fell within the category of the brave and commendable, not the foolhardy and unreasonable. He acted with proper regard for his own safety in all of the circumstances, but, meritoriously, with greater regard for the lives and well-being of others.

For those reasons, I dismiss the Defendant’s claim that the Claimant was guilty of contributory negligence. That being the only issue of liability left to be determined, I shall order that judgment be entered for the Claimant, the damages to be assessed, without any reduction.