Smith v Kempson

The Appellant (the Defendant in the action) appeals against the decision of HHJ Redgrave of 22 July 2010 allowing the Respondent’s claim for damages for negligence arising out of a road traffic collision. The appeal is pursuant to CPR 52.11 (3)(a), on the ground that the learned judge erred in law in making a finding of negligence against the Appellant on the basis of the facts as found.

The claim arose out of a road traffic accident on Saturday 14^th December 2007 at approximately 15:15. The Respondent’s motorcycle collided with the car driven by the Appellant.

The Appellant lived in a house situated on Gascoigne Gardens, Woodford Green. This is a horseshoe shaped road accessible by road only from Oak Hill. Oak Hill runs broadly from north to south, and Gascoigne Gardens is to the west of Oak Hill.

On 14^th December 2007 the Appellant left home in her car to go shopping, with her husband in the passenger seat. The Appellant sought to exit from the southernmost exit.

As she approached the junction, the Appellant’s view to her right (to the south) along Oak Hill was obscured by parked cars and a parked van situated on Oak Hill on the same side of the road as the two entrances/exits to Gascoigne Gardens. As a consequence of the positioning of these parked vehicles, any traffic wishing to proceed north along Oak Hill was obliged to travel in the right hand lane, that is on the wrong side of the road.

At the time the Appellant was seeking to exit Gascoigne Gardens to turn right onto Oak Hill (to travel southwards), the Respondent was proceeding northwards along Oak Hill in the right hand (east) lane. The collision occurred as the Appellant emerged from Gascoigne Gardens.

It was a fact, agreed by the Respondent under cross-examination, that the Appellant would have been unable to see the Respondent’s vehicle before exiting Gascoigne Gardens or at any point until she emerged past the front of the van which was parked on Oak Hill.

The material parts of the Judge’s judgment at paragraphs 4 to 7 read as follows:

“4.

I have no reason to question the integrity of any of the witnesses who have given oral evidence today. This accident occurred two and a half years ago. Memories fade, recollections may differ, they may differ in a material particular, but that does not necessarily mean that one person is telling the truth and the other is not. I have no reason to believe that anybody has given evidence other that in accordance with their genuine belief as to what happened on that occasion.

5.

Mr Kempton provided a map or diagram of how he viewed the incident which occurred and he places himself on the motorbike on the right hand side of the road which everybody accepts he had no alternative to do because of parked cars on Oak Hill on that occasion. According to his evidence and his diagrams he was only 8 to 10 feet away from the defendant’s vehicle when he saw it and immediately braked. That was not a controlled stop. The back wheels locked, as a consequence of which he was jettisoned off his bike and came to rest underneath the bumper of the Mercedes driven by Mrs Smith. The diagram at page 85 places Mrs Smith’s vehicle well into the right hand lane, the lane in which the claimant was travelling on that occasion, and both Mr and Mrs Smith, and indeed Miss Lila Rowe, do not accept that the car was as far over the white middle lane as Mr Kempton indicated. Mrs Smith indicated that part of the passenger side of the front of the car had gone over the white line. Mr Smith gave more than one version of events and indicates that his recollection was not as clear as it could be.

6.

Miss Lila Rowe felt that Ms Smiths car was partially over or on that white line. I do not think it really makes a great material differences to the circumstances of the case because this accident occurred because Mrs Smith pulled out in circumstances where she thought it was safe to do so and it was not. Whether that was because she did not look properly or she looked properly but she had a blind spot but could not see, I am not in a position to say.

7.

The claimant brings this case. The burden of proof is the balance of probabilities and, as has been pointed out to me, if I conclude that the chances are 51% that the accident occurred as a result of falling below the standard of a reasonable driver by the defendant, that is sufficient to prove the case. Mrs Smith was quite candid in her oral evidence. She accepted that the priority was to the driver on Oak Hill. She accepted that this was a tricky junction. She felt that she did everything possible to make sure it was safe to undertake the manoeuvre and to pull out. She was wrong about that. It was an error of judgment she took in the circumstances and she pulled out in circumstances where, if she had seen the motorcyclist on the road (and there is no suggestion that he was doing anything that he should not have been doing, or his driving fell below the reasonable standard of a motor cyclist,) then the accident would not have occurred. Therefore, I have come to the conclusion that on a balance of probabilities the accident was caused by the negligent driving of the defendant in pulling out from a minor junction on to a major road in circumstances where it was not safe to do so. The defendant’s view was clearly obscured by cars which were parked along that road. She indicated on that day that it was a particularly busy and heavily parked junction and therefore she knew more than anybody else because of the period of time that she had lived in that area that she had to take extra special care on that occasion, which she did not do, and so therefore I find for the claimant.”

In the course of exchanges between the bench and the bar immediately after the judge had delivered her judgment she said:

“I do not think I included in my judgment the issue of, well, it wasn’t an issue, but there is no suggestion that the claimant was speeding or driving at an excessive speed or in excess of the speed limit”.

This is therefore a case in which there is a clear and unchallenged finding that the Respondent’s driving did not fall below the standard of care required for a motorcyclist in his position.

Mr Sullivan submits, as is not in dispute, that an appellate court may accept the findings of specific facts by a trial judge, but nevertheless be free to substitute the appellate court’s own inference as to whether those facts constitute carelessness. His main submission is the trial judge made no findings as to what it is specifically that the defendant failed to do, or what she did, which constituted a breach of the duty of care. So either the judge was failing to apply the correct legal standard, but was instead applying a test of absolute liability, or she has failed to make a finding of primary fact which can support her conclusion that the defendant was negligent.

Mr Sullivan cited Farley v Buckley [2007] EWCA Civ 403 in support of the proposition that a driver who turns from a minor road onto a major road and collides with a motorcyclist on the major road may be found on particular facts not to have been negligent. That was the finding of Swift J in that case, and an appeal failed. Morris Kay LJ described the facts as “unique” (para 11) and Pill LJ at para 16 said the case is not authority for the proposition that emerging from a minor road at 5-8 miles an hour in circumstances such as prevailed in that case is generally an acceptable manoeuvre.

In that case it is to be noted that Swift J found that the motorcyclist was driving recklessly. She said (as quoted at paragraph 7 of the judgment of the Court of Appeal):

“I have found that at the time of the accident [the defendant] had advanced only about 5 feet beyond the offside of the refuse wagon [which was obstructing his view]. In moving slowly as he did, it seems to me that the defendant was taking all reasonable precautions against the possibility, however remote, that their might be a vehicle overtaking the refuse wagon. He could not, in my judgment, have foreseen that there would be an overtaking vehicle which would have ignored the hazards which I have previously mentioned and be travelling straight across the junction at a speed which would not allow it to stop when it saw the defendant’s car. It seems to me that in all the circumstances of this case, to stop his car just beyond the offside of the refuse wagon would have been to go beyond the duty of reasonable care”.

For the claimant Mr Edwards cited Worsfold v Howe [1981] WLR 1175. That was another case of a collision between a car and a motorcycle where the motorcycle was on the major road. The car driver was attempting to come out from a station yard and to turn right across the path of the motorcyclist. When the defendant car driver moved out and the nose of his car was a foot or two beyond a tanker vehicle which was obstructing his view the motorcyclist ran into the offside front of the car. There was an issue as to whether the car was stationary or not at the time of the collision. The judge held that it was not stationary but it was moving forward very slowly indeed. So far as is relevant to the present case, the finding of the judge as set out at page 1181D of the report was:

“Now I must say that when I first heard counsel for the plaintiff opening this case I took the view that a person who emerges from a minor into a major road ought not to proceed beyond the line of his vision and if he does so, he does so at his own risk and could not rely on other vehicles seeing him…[but for the case of Clark v Winchurch,] I would have found the parties 50-50 to blame on the basis that the plaintiff had been going too fast and the defendant had gone beyond the line of his vision”.

Counsel for the defendant car driver submitted that in that passage the judge was really saying that the defendant was under an absolute or strict liability under the circumstances at case when he was coming from a side turning in front of a stationary vehicle. Browne LJ rejected that submission. He said at page 1181F:

“It seems to me that if one reads that sentence as a whole, and in its context, it is not right to say that the judge was taking the view that there was a strict or absolute liability. It seems to me that he was saying no more than in the circumstances there is a very high duty on a defendant of taking care”.

Having held that the judge had misdirected himself in relation to Clark’s case the Court of Appeal followed this course as described by Browne LJ:

“It seems to me to follow that the right thing for this court to do is to allow the appeal and make the finding which the judge would have made if he had not, wrongly in my view, thought he was bound by Clark’s case to come to a different conclusion. I am not saying for a moment that if I had myself been trying this case I should have apportioned the responsibility 50-50 but it is not possible for this court to go into the question of apportionment or alter the Judge’s view about that”.

Mr Edwards submits that that is a case where the Court of Appeal upheld a finding of negligence by a defendant driver simply on the basis that he had emerged from a minor into a major road beyond the line of his vision, without identifying precisely what he did or failed to do which amounted to a breach of the high duty of care which is placed upon a driver carrying out such a manoeuvre.

There are in principle three alternative conclusions to which a judge trying such a case can come. First, the judge can find (as Swift J did in Farley) that the driver has driven with all reasonable care. Second, the judge can find (as the Judge did in Worsfold) that the driver of the car has driven below the required high standard of care. Third, the judge can conclude that he or she is unable to make a finding one way or the other, in which case, since the burden of proof is on a claimant, the claimant will fail. If a judge makes a finding that the driver of the car emerging from the minor road has not driven up to the high standard of care required, the judge may then go on to consider whether to apportion liability, if the judge concludes that the driver of the vehicle on the major road has also failed to drive with the required standard of care.

It is extremely rare in road traffic accident case for judges to conclude that they are unable to make a finding one way or the other as to whether the driver of a car emerging from a minor road has acted with the required care.

In the present case the Judge directed herself correctly when she said;

“The burden of proof is the balance of probabilities and, … if I conclude that the chances are 51% that the accident occurred as a result of falling below the standard of a reasonable driver by the defendant, that is sufficient to prove the case”.

Accordingly, I reject the submission that the Judge was directing herself according to the wrong standard, or applying a test of absolute or strict liability. It is significant in my view that the Judge was able to, and did, reach the clear conclusion that the claimant driver of the motorcycle had not driven below the reasonable standard required of a motorcyclist in the circumstances of that case. That is the contrary of the finding made in Farley.

I accept Mr Sullivan’s submission that the Judge did not make a specific finding of what it was that the defendant did which she should not have done, or failed to do which she should have done, but in my judgment that does not preclude her from reaching a conclusion that the defendant failed to reach the high standard of care required. It is open to a judge to conclude that a person has acted in breach of standard of care even if the judge is unable to say, or has not said, precisely what action or omission constituted the fault. Worsfold is an example of such a case.

I have some sympathy with the defendant in this case. She has been found to have acted in breach of a duty of care, but not been told precisely she did or failed to do which gives rise to that finding. But that in itself is not a basis for allowing the appeal.

For these reasons in my judgment the appeal must fail.