Case No: B3 / 2010 / 0490
Neutral Citation Number: [2010] EWCA Civ 1615
IN THE COURT OF APPEAL  ( CIVIL DIVISION )
ON APPEAL FROM LEICESTER COUNTY COURT
(HER HONOUR JUDGE HAMPTON)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday 27th October 2010

Before:

LORD JUSTICE SEDLEY
and
LORD JUSTICE MOSES
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Between:

	Ievers	Defendant/
Appellant	
	- and -		
	
Prebble	
Claimant/
Respondent	

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Mr Nick Hinchliffe QC (instructed by Kennedys) appeared on behalf of the Appellant.
Mr Guy Watkins (instructed by Hodgkinsons) appeared on behalf of the Respondent.

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Judgment
Lord Justice Moses:

1.	This is an appeal, with permission of the single judge, against a decision of HHJ Hampton at Leicester County Court on 12 November 2009.  The case concerns a road traffic accident which took place as long ago as 8 March 2005 at a roundabout at the junction of a number of roads close to Leicester city centre.  The best way of identifying it is that some of the roads leading into the roundabout were identified as Fosse Park Avenue, Narborough Road South and the A5460.

2.	Two vehicles were involved: a Peugeot owned by the claimant, Angela Prebble, who is the respondent to this appeal, and a Mazda sports car driven by Nadine Ievers, who was the defendant and is the appellant in this appeal.  The collision occurred at 6 pm.  No one could approach or drive in that roundabout without taking their life in their hands and without their hearts in their mouth.  It is extremely difficult to manoeuvre in that roundabout, which on a glance at the map indicates that there are a large number of roads going in and out and on which, if you are stuck in the wrong lane, you are going to find yourself carried round with the impetus and thrust of other traffic beyond the point at which you can turn into the road where you wish to go.  

3.	The judge concluded that the two cars had collided as the roundabout approaches the southeast-bound lane which goes away from the roundabout of Fosse Park Avenue.  She found that the collision was mainly the responsibility of the driver of the Peugeot, Angela Prebble, but that the driver of the Mazda, Ms Ievers, had to bear some responsibility for the collision, and she apportioned that responsibility as 70 per cent to Ms Prebble, the driver of the Peugeot, and 30 per cent to Nadine Ievers, the driver of the Mazda. 

4.	The appeal has focussed upon the question whether there was evidence on the basis of which that apportionment could be made.  There has been no appeal on the conclusion of the judge that the driver of the Peugeot was more substantially to blame.  In order to analyse the evidence, it is necessary to consider the layout of the roundabout at the critical point.  At the critical point there is a gantry holding traffic lights and a stop line.  The lanes are divided into four, and we were invited to count the nearside lane as number 1 and the offside lane as number 4.  In number 1 the arrows indicated straight ahead.  In other words lane number 1 was an appropriate lane for anyone who wished to cross into the roundabout and then out again into Fosse Park Avenue.  Lane number 2 had two arrows painted on it, indicating that it was a lane suitable for drivers wishing to go either into Fosse Park Avenue or follow the roundabout round to the right into Narborough Road South and onwards.  Lanes numbers 3 and 4 had arrows pointing only to the right.  In other words they were not suitable for anyone who wished to go into Fosse Park Avenue.

5.	The claimant's case as pleaded, and in which she persisted in her evidence, was that she was approaching the stop line to which I have already referred. She knew she had to get into Fosse Park Avenue and knew, therefore, she had to be in either lanes 1 or 2 in order to achieve that result.  Before she ever reached the stop line, she said she had been forced out into lane 3 by obdurate drivers driving on her nearside but, despite their lack of consideration, she had managed to gain lane 2 before she reached the stop line.  When she reached the stop line, the traffic lights had turned red and she waited.  She then moved off in a proper manner towards Fosse Park Avenue, but unfortunately the Mazda sports car on her nearside had accelerated away, determined to gain the roundabout in Narborough Road South, and had cut across her path, causing a collision between the front nearside of the Peugeot driven by Angela Prebble and the rear offside of the Mazda.  

6.	The driver of the Mazda on the other hand, Nadine Ievers, denied that she had ever been in lane 1, the lane appropriate to Fosse Park Avenue, and a lane which was not appropriate for anyone seeking to go round the roundabout to Narborough Road South.  She was intent on going round the roundabout.  For that purpose she claimed she was in lane 2, one of the lanes which were correct for drivers intent on that path.  She pulled away when the lights were turning green for the first time, but at the last moment she observed the Peugeot seeking to cut across her path.  In an instant moment seeking to avoid collision she accelerated, although not to a fast speed, but unfortunately failed to clear the path of the Peugeot pulling over from lanes 3 to 2 and that Peugeot struck her behind the wheel arch of the Mazda.  

7.	That brief account of the evidence shows that both drivers were claiming to be in lane 2 and both blamed the other for being in the wrong lane for the direction which they sought to reach and cutting across, in a negligent manner, their respective paths.  
8.	The judge herself, apparently familiar with the roundabout, found as a fact that the Peugeot driven by Angela Prebble had been forced into what the judge described as lane 4 and was therefore required to manoeuvre back in order to gain Fosse Park Avenue: see paragraph 5 of the judgment.  She found that the witness accounts were reliable to the extent that neither driver had been aware of the other (see paragraph 12) and she noted that the recollection of the driver of the Mazda was poor.  The judge correctly identified the point of collision, namely the Mazda's rear offside just in front of the wheel arch (see paragraph 17) although I believe in argument we were told it was just behind.  

9.	She noted that it was difficult to decide how the accident happened, but at paragraph 21 repeated that the driver of the Peugeot had been forced into the wrong lane on the roundabout.  The next important finding that she made is in paragraph 22.  It is plain from paragraph 22 that the judge rejected the claimant's account, that is the account of the driver of the Peugeot.  She said this:

"I have come to the conclusion, on the balance of probabilities that she [that is the driver of the Peugeot, Angela Prebble] had not completed her manoeuvre into the correct lane before she came to the traffic lights actually on the roundabout, so that she was not completely in lane 2 and therefore not completely in the correct position that she needed to be in order to go down Fosse Park Avenue.  I find, as she herself says, that she moved off slowly and as she did so she was still having to undertake her manoeuvre to get into Fosse Park Avenue and was relying on others to give way to her as she did so."

10.	Thus there is a clear finding by the judge that the driver of the Peugeot was neither completely in lane 2 nor completely in lane 3 but was straddling the two and was at the time of the collision trying to get into the appropriate lane for those seeking to reach Fosse Park Avenue.

11.	The next important finding is in the following paragraph. The judge concluded that the driver of the Mazda had been and remained in the correct lane. She said this: 

"23. … I find on the balance of probabilities that the Defendant [the driver of the Mazda, Nadine Ievers] was always in the correct lane, both on her entry onto and her manoeuvring round the roundabout."

12.	The judge went on, however, in the same paragraph to make another finding of fact.  She said : 

"I find on the balance of probabilities that she [that is the driver of the Mazda] was certainly not the first at the traffic lights, the Claimant [the driver of the Peugeot] was ahead of her but the Claimant  was still undertaking her manoeuvre as the lights changed to get into the correct lane to move into Fosse Park Avenue."

As I shall observe, that finding that the driver of the Peugeot was ahead of the driver of the Mazda was important.

13.	She then repeats those findings that, firstly, the driver of the Peugeot was not in the correct position for those seeking to gain Fosse Park Avenue and repeats that the driver of the Mazda had remained in her correct lane.  She then comes to this conclusion:

"I have come to the conclusion that each of the drivers must have misjudged the movement of the other to the extent that they were able to, neither having been aware of the other until very shortly before the impact (in the Defendant's case) or at all (in the Claimant's case)."

14.	In other words she concluded from the position of the cars that not only the driver of the Peugeot but also the driver of the Mazda ought to have been aware of the position of the other car, particularly that the driver of the Mazda should have been aware of the position of the Peugeot car ahead of her.  The judge points out that she is familiar with the roundabout and draws attention to the need for other drivers being aware of possibly the wrong position of their fellow drivers on the roundabout and the need, in the exercise of reasonable skill and care, to have regard to the fact that other drivers might find themselves in the wrong position.  There can be no objection to those obviously sensible remarks.

15.	The judge then concludes that the driver of the Peugeot, the claimant, "misjudged slightly her position at the traffic lights" and gave the driver of the Mazda the impression that she was cutting in front of her but she continues: 

"Had the Defendant not proceeded as quickly as she did (and I am not saying it was necessarily too fast), the accident might have been avoided.  The Defendant took the decision in the panic of the moment to try and accelerate away from the collision.  Unfortunately, she was not able to do so and the collision took place in the location the Defendant says it did with the impact being in relation to the motor cars, as both drivers seemed to accept it was"

16.	The judge then came to a conclusion as to apportionment.  She concluded that the driver of the Peugeot, that is Angela Prebble, should bear the major part of responsibility for this reason:

"Her manoeuvring around the roundabout had been affected by other traffic.  She had to cross from, as she readily herself accepts, the wrong lane to get back into the [right] lane."

17.	She therefore finds the driver of the Peugeot to blame for the accident but she went on also to blame the driver of the Mazda, the defendant, in these terms :

"However, the Defendant perhaps was not as alert as she should have been to the Claimant's difficulties and took a decision, that she could perhaps forgiven for in the agony of the moment, but one that in fact contributed to the collision, by seeking to accelerate away rather than stopping and slowing down, which she would have done had she been more aware of the Claimant.  This may have avoided the collision."

She then, as I said, apportioned blame 70 per cent to the driver of the Peugeot and 30 per cent to the driver of the Mazda.

18.	Mr Hinchliffe QC, on behalf of the driver of the Mazda, contends that there was no evidential basis for the finding of fact that the judge made, first, that the driver of the Peugeot at the traffic lights had started but not completed a manoeuvre and, secondly, that the driver of the Peugeot was ahead of the Mazda at the traffic lights.  He accepts that, on the findings of fact that the judge made, it would have been open and was open to the judge to make the apportionment of blameworthiness that she did.  He was right so to accept.  If the state of affairs was such that the Mazda was faced with a car stationary ahead of her, having been either forced or chosen to go in the wrong lane and attempting to get into the right lane ahead of her, the driver of the Mazda had no business to bore on ahead, seek to get round by accelerating away and then misjudge the position of the two cars.  Indeed an apportionment of 70/30 might be thought to be rather too favourable to the driver of the Mazda. 

19.	That is not, however, the point of the appeal.  The point of the appeal is whether there was evidence that, when the lights had turned to red, the driver of the Peugeot had started but not completed her manoeuvre and whether there was evidence that the driver of the Peugeot was ahead in the position described of the Mazda.  

20.	This court must be and remain extremely sceptical of appeals advanced on points of fact.  A mere reading of the pleadings or of the evidence is an inadequate way in which to get a fair impression of the evidence and impact of the evidence at trial.  It is not just a question of trotting out the familiar words that the trial judge has seen and heard the witnesses, but rather that the impact and nature of the evidence can never become clear merely from the written recorded word.  But it nevertheless remains open to this court to consider whether there really was any evidence for the factual conclusion that the judge reached.

21.	In the instant appeal, as I have endeavoured to emphasise, both parties asserted that by the time that the traffic lights had turned red and then subsequently green, they were in the correct lane for their destination and that they were in lane 2.  Both could not be right.  The defendant, the driver of the Mazda, had never seen the Peugeot in front of her, let alone at an angle indicating she had not completed her manoeuvre.  The driver of the Peugeot had never asserted that she was at an angle ahead of other cars, having failed to complete the manoeuvre when the lights had turned red.  

22.	In those circumstances, whilst I understand that the judge was seeking to let off lightly and be charitable to the driver of the Peugeot, caught as she was in the familiar but unenviable position of being in the wrong lane for the destination she sought to achieve, the judge sought to compromise her conclusions in a way that in my judgment was not justified by any evidence before her.  There was no evidence that the driver of the Peugeot had failed to complete her manoeuvre and was stationary ahead of the driver of the Mazda.  It was not, in my judgment, open to the judge so to conclude.  Further the position of the damage to the Mazda on the rear offside, whether just in front or just behind the wheel arch, fortifies my view as to the unacceptability of any such conclusion that the driver of the Peugeot had failed to complete the manoeuvre.  The obvious explanation was that either one or the other driver had sought to cut in front of the other in an attempt to get into the appropriate lane for the destination they were seeking.  Both could not be right, on the evidence that the judge heard.  

23.	In the light of that conclusion, namely that the driver of the Peugeot was not at an angle in front of the driver of the Mazda, there was no basis for apportioning blame to the driver of the Mazda, Nadine Ievers.  She had remained in the correct lane, as the judge found throughout.  What more could she do, I ask rhetorically, than to seek to avoid the collision by pulling away so that anyone cutting across her path would do so behind the Mazda?  It is difficult to see what other manoeuvre she could have adopted other than remaining stationary, in which case the centre or front of the Mazda would have been damaged.  

24.	In those circumstances I have reached the conclusion that this is one of the very rare cases where it is appropriate to interfere with the judge's findings of fact and I would allow the appeal.

Lord Justice Sedley: 

25.	I agree.  I add two things.  One is that it frequently happens that the trial judge is not satisfied that either side's account of the facts is correct.  In that situation the judge is perfectly entitled to take some of the facts from one account and some from the other.  What she is not entitled to do is to find the true facts to be somewhere between or beyond the two competing accounts.  Frustrating though this is for judges who are pretty sure, as happens, not only that neither side's account is acceptable but that a third account is the correct one, it is unjust to expect the losing party to accept findings of fact which he or she has never been given notice of or had a chance to test and challenge. This I fear is in part at least what happened here.  For the reasons detailed by Moses LJ the correct approach to those facts, which were legitimately found by the judge, cannot yield a finding that the defendant was in any measure negligent.  Even Mr Watkins' elegant advocacy has not been able to deflect this conclusion. 

26.	The second point is this.  Our papers, like the judge's, included a sketch plan of the roundabout, showing in places directional arrows which were plainly incorrect and photographs which, as always in road traffic cases, distort perspective sufficiently to render them at least useless and at most dangerous. It is therefore a piece of good fortune that the judge happened to be familiar with this roundabout.  One prefers not to visualise what would have happened if she had had to take to a view in comparably heavy traffic.  But what neither the judge nor the parties had was the aerial photograph which Moses LJ, or perhaps more accurately his clerk, was able without undue difficulty to download from the internet over the short adjournment.  I would respectfully commend this resource to solicitors, counsel and courts which need a serviceable view in plan of a location in the United Kingdom.

Order: Appeal allowed