B3/2005/2043
Neutral Citation Number: [2006] EWCA Civ 974
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COUNTY COURT
(HIS HONOUR JUDGE CORRIE)
 
Royal Courts of Justice 
Strand 
London, WC2 

Tuesday, 27th June 2006
 
B E F O R E:
LORD JUSTICE AULD
LORD JUSTICE HOOPER
LORD JUSTICE HUGHES

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DAVIS
CLAIMANT/RESPONDENT
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SCHROGIN
DEFENDANT/APPELLANT

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  (DAR Transcript of 
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MS J PERRY (instructed by Messrs Just Law, Amlin House, Parkway, Chelmsford, ESSEX CM2 0UR) appeared on behalf of the Appellant.

MR N SPROULL (instructed by Messrs Clarke Willmott, 1 Georges Square, Bath Street, BRISTOL, BS1 6BA) appeared on behalf of the Respondent.
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J U D G M E N T
1.	LORD JUSTICE HUGHES:  This is a defendant’s appeal in a running down action.  The judge held him solely to blame for the accident.  His contention is that there should have been a finding of some measure of contributory negligence.  The accident occurred on the main A40 road in Oxfordshire on a long straight section where there is one lane each way.  Both the claimant and the defendant were travelling westwards.  The defendant was in a largish saloon car trapped in a substantial traffic jam with cars in a queue about a half a mile, or perhaps more, long.   As with many such queues, it was either stationary or inching forward.  The claimant was riding a motorcycle in the same direction.  Because there was nothing at all oncoming in the eastbound lane, and because the road was straight with excellent visibility for half a mile or so, the claimant was able to overtake the stationary queue.  The defendant decided to get out of the queue by executing a U-turn and going back the way he had come.  As he emerged from the queue in the course of that U-turn there was a collision between his car, by now roughly broadside across the eastbound lane, and the claimant’s motorcycle.  It was a nasty collision and the claimant sustained serious injuries.  This all happened at about 6.30 pm on a summer evening.  The weather was fine, the road was dry, the visibility was excellent for both drivers some hundreds of yards in each direction from the point of impact.  

2.	The judge’s primary findings of fact were these: 

1) both drivers were responsible, respectable people.  The claimant was a careful and experienced rider, doing a journey that he did regularly. The defendant, who was a visitor from abroad, was a very experienced driver, both in his home in the United States and also in Europe, and as the judge said no doubt ordinarily an exemplary driver.  

2) The claimant on his motorcycle was well out into the oncoming lane about half or two thirds of the way across it from the central white line.  That was so as to make himself as visible as possible.  He had his headlight on, dipped, his right hand indicator was flashing and he was travelling at something between 40 and 45 miles per hour.  He had been in that position for about half a mile. He was not weaving in and out of the traffic.  

3) The stationary queue then nudged forward about one or one-and-a-third car lengths.  The defendant moved over towards the left hand kerb. He then pulled out to make his U-turn.  

4) The claimant’s motorcycle was there to be seen when the defendant did that, but the defendant did not see it until the collision.  The defendant was looking the wrong way.  He was concentrating on looking to his left westwards along the road.  The judge’s finding to that effect was squarely based on the defendant’s own evidence that that is what he was doing.  

5) At the time when the claimant first spotted the defendant moving leftwards towards the kerb preparatory, as it turned out, to a U-turn, the claimant was no more than five cars’ length back from the point of impact. 

6) The defendant had become impatient.  He was on the wrong road for his destination and stuck in a traffic jam to boot.  He had said in evidence in a single answer that he was possibly a bit annoyed.  The judge found that he was sure that it was significantly more than that and that that was a significant factor in explaining the error that the defendant had made.  

3.	On those facts the judge found first that the defendant was negligent in making his U-turn without looking properly, or indeed at all, to his right.  There is not and cannot be any challenge to that finding.  Indeed; that the defendant was negligent in that way was conceded at the trial.  The judge found that the claimant was not to blame.  He held that there was nothing he could have done to avoid the accident.  He had indicated in the course of argument that his first reaction to the evidence was that the claimant was perhaps travelling faster than he should have been, but after argument and further consideration he concluded that that was not a legitimate criticism.  But in any event he held that even if the claimant had been travelling appreciably more slowly than he was, it would have made no difference, because he had been right on top of the point of accident when the defendant first did anything to excite anxiety.  In other words the judge held that even had there been any excess speed, it was not causative of the collision.

4.	Ms Perry has helpfully taken us to short notes of two cases noted in Bingham’s Motor Claims Cases.  It does not seem to me that authorities on a point such as this are in the end of great assistance.  That in different situations an overtaking driver may well be guilty of contributory negligence is something about which there can be no debate.  But it does not follow that every such driver is.  The cases to which we have been referred are both cases in which this court said no more than that there were no grounds to interfere with the findings of the judge below.

5.	Everything depends in those cases and depends in this case on the point at which the overtaking driver was alerted or should have been alerted to the fact that there was any danger ahead.  With two exceptions, the appellant defendant does not challenge the judge’s primary findings of fact.  In two respects however, he does.  We should remind ourselves, as it seems to me, that the judge heard the evidence and saw the witnesses.  He saw not only what they said but how they said it, and it seems to me that we should be very slow in this court to attempt to second guess his findings as to primary fact.  

6.	The challenge to the primary findings comes to the last two findings that I have listed, namely first that the defendant acted when annoyed or irritated and secondly, to the finding that the claimant had no time to react to what was happening ahead of him.  As to the first, it seems to me that the judge was entitled to find that annoyance was a significant factor in causing the defendant to make his U-turn and to make it without looking in one direction at all.  It is said that that finding is inconsistent with the evidence before the judge. In particular it is said that the evidence of an independent witness, Mr Howard, to the effect that the defendant emerged very slowly, indeed barely moving, is inconsistent with it.  It was, as it seems to me, for the judge to assess which parts of whose evidence he accepted.  But in any event the defendant did not have to move rapidly in order to present a sudden and unexpected obstacle to the claimant.  To the extent that it is suggested that a second witness, Mrs Waters, whose short statement to the police officer was before the judge though she did not give evidence, supported the suggestion that the defendant was moving very slowly, I for my part cannot see that that can be related to what she says.  Indeed, she said it all happened very fast. 

7.	As to the critical finding that the claimant had no time to react, the defendant’s case was put to the judge on the basis of the defendant’s own evidence that there elapsed five to ten seconds between the defendant’s movement to his near side and the collision.  It is no doubt true that if that time had elapsed, that would have given the claimant something like 100 or 200 yards in which to react.  It is worth observing that the defendant had not recalled moving to his near side until he saw the claimant’s statement to that effect.  That might alone be thought to cast some doubt on any estimate that he made of the time elapsed after such movement, but in any event if there had been that kind of time for the claimant to react, it would have meant that for most of 100 or 200 yards the defendant was to be seen emerging and that the claimant had simply ridden straight into him. The judge was plainly right, as it seems to me, to say that that was simply not plausible.  

8.	The appellant’s written grounds of appeal begin with the contention that the judge apparently accepted the evidence that the claimant had those five or ten seconds in which to react.  The judge’s findings make it perfectly clear that he did not.  He recited the defendant’s evidence to that effect, but his critical finding was that the claimant was only about five car lengths away when he saw the first leftwards movement of the defendant, followed immediately by the U-turn.  It is perfectly plain that the judge did not accept the five or ten-second time lapse.  

9.	Here in this court the appellant defendant’s case has been presented in a more refined form.  Here the contention has become that the claimant must have been further back than five cars’ length, because at 40 miles per hour he would cover that kind of distance, say about 20 yards, in about a second, and the U-turn manoeuvre, it is suggested, must have taken longer than that.  That is an argument or a proposition which was not presented to the trial judge.  Running down arithmetic is notoriously dangerous.  This car only needed to move a very short distance in order to block something like two thirds, or perhaps a little more, of the lane in which the claimant motorcyclist was travelling.  

10.	It seems to me that it does not follow that when the claimant saw one car in a queue of traffic which he was overtaking nudge to the nearside, he should necessarily be expected to anticipate that what it was going to do was not only a U-turn which would completely block his path, but also that it would be done without the driver pausing to look his way.  It is true that the claimant, with a candour that he shared with the defendant in evidence, said himself that he had seen the movement towards the nearside and he went on to say this:

“At that point alarm bells were ringing, but it was so instantaneous after that that I didn’t have time to react to anything.”

He added that he had thought that the car driver might be doing something different to what the rest of the traffic was continuing to do.  

11.	It does not, as it seems to me, follow from that that he was at that point sufficiently on enquiry of the prospect of a U-turn. But in any event on the judge’s primary findings, whether the estimate of five car lengths is a mathematically precise one or not, the claimant was right on top of the scene and the point of impact when the defendant emerged from the line of traffic without looking.  There is, as it seems to me, simply no basis for challenging the judge’s finding upon causation.  Once it is held, as the judge was plainly entitled to hold, that the claimant was so close to the point of impact that he could not avoid the collision, then there is simply no basis for any finding of contributory negligence.  

12.	I would for those reasons uphold the judge’s finding and dismiss this appeal.

13.	LORD JUSTICE HOOPER:  I agree

14.	LORD JUSTICE AULD:  I also agree that the appeal should be dismissed for the reasons given by my Lord, Lord Justice Hughes.

Order:  Appeal dismissed with costs.