B3/01/2210
Neutral Citation Number: [2002] EWCA Civ 359
IN THE SUPREME COURT OF JUDICATURE                            
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BASINGSTOKE COUNTY COURT
(His Honour Judge Roach)
                                    Royal Courts of Justice
                                    Strand
                                    London WC2
 
                          Friday, 22nd February 2002
B e f o r e :

LORD JUSTICE POTTER
SIR ANTHONY EVANS

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GARY ANTHONY IRWIN

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CHRISTOPHER STEVENSON
Appellant
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(Computer Aided Transcript of the Stenograph Notes
of Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 0207-421 4040
Fax No: 0207-831 8838
Official Shorthand Writers to the Court)
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MR. C. SHARPE Q.C. (instructed by Messrs Lyons Davidson, Bristol) appeared on behalf of the Appellant/Defendant.

MR. A. CLEMENS (instructed by Messrs Nelson Nichols, Basingstoke, Hampshire) appeared on behalf of the Respondent/Claimant.

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J U D G M E N T
1.	LORD JUSTICE POTTER: In this case the defendant appeals from the judgment of His Honour Judge Roach given in the Bristol County Court on 3rd October 2001 when, following a trial on liability only, he held the defendant liable to the claimant in respect of injuries caused in a road traffic accident which occurred on 3rd November 1997 on a country road, the B3135 between Great Orr and the Burntwood crossroads in Somerset. The judge also found that the claimant was contributorily negligent to the extent of 50%. The road in question was a straight single carriageway road, about 16 feet wide and subject to a 60 mph speed limit. It had grass verges on either side, separated from the fields behind by intermittent fencing, hedgerows and stone walling. At the point where the accident occurred there were trees beside the road. At the time of the accident it was dark or getting dark and all the vehicles involved had headlights on.
2.	The defendant is a farm worker who was driving his tractor along the road, intending to turn off the road into a field on the other side in order to pick up an empty trailer before taking it back to the farm at which he worked. Not only did the tractor have its lights on, it had a prominent orange flashing light in the centre of the roof of its cab. The entrance to the field into which the defendant was proposing to drive lay on the side of the road opposite to that on which he was driving. It was a fairly narrow entrance through an open gateway in a broken stone wall. The defendant approached it. It was therefore necessary for him to slow down from the speed approaching 30 mph at which he had been driving along the road in order to make a right hand turn across the opposite carriageway, entering the narrow gateway opposite at right angles. He slowed down to some 10 mph and, in the course of his turn, his tractor was struck by the motor cycle of the claimant which had at the time just overtaken a Ford Transit van close behind the defendant's tractor and was attempting to overtake the tractor itself.
3.	According to the findings of the judge, as amplified by certain parts of the evidence which have been shown to us and which have not been in issue, the defendant had for some distance been driving along the road at nearly 30 mph, with the Ford Transit van following him, and the claimant in turn following the van on his motor cycle. The defendant was aware from lights behind that there were other vehicles following the van, but he was unaware that any of them was a motorcycle.
4.	The defendant's account of the accident, which the judge broadly accepted, was as follows. As he approached the part in the road where he had to turn, he slowed down, putting on his offside flashing indicator light. He said that he observed his usual procedure of mirror, signal, manoeuvre. As he started to make his turn he was struck, as if from nowhere, by the claimant's motorcycle which hit his front wheel when it was on the offside carriageway and veered off into the field into which the defendant was turning. In this account the defendant was supported by the evidence of Mr Chamberlain, the driver of the following Transit van, who said that, having followed the tractor for sometime, he saw it indicate well in advance of the turn and that he slowed as it slowed, preparing to stop, slow down or wait while the tractor made its expected turn. So far as the motorcycle was concerned, Mr Chamberlain said that he remembered lights coming up behind him as he was slowing and that immediately afterwards he was conscious of the claimant's motorcycle alongside him and overtaking him some two feet from the offside of his vehicle, at a point when Mr. Chamberlain was travelling at about 20 mph, some 60 feet behind the tractor. He said that, at that time, the tractor had just started its manoeuvre to turn and he immediately thought that there would be an accident.
5.	The claimant's account was that he had followed the two vehicles on his motor cycle for about a mile as they drove at about 30 mph but had refrained from overtaking because it was not safe to do so. He decided to overtake when the road ahead appeared to be clear. At the time he did so, he was driving some 10 yards only behind the Transit van. This distance was also illustrated by him on a sketch plan which he drew in the course of the proceedings below. On his own account, at the time when he decided to overtake, the Transit van was itself only about 8 or 9 yards behind the tractor (ie even closer than Mr Chamberlain had estimated). However, in accepting Mr. Chamberlain's estimate of 60 feet, the judge plainly considered that there had been a greater interval than that perceived by the claimant.
6.	The claimant said he pulled out and started to overtake at a speed of 40 to 45 mph. I observe that the motorcycle which the claimant was driving was a Honda 850 cc cycle, plainly capable of fast acceleration and high speed. However, the judge made no specific findings as to the defendant's overtaking speed. He appears to have accepted his broad account and to have proceeded on the basis that it was indeed a speed of about 40 to 45 mph at which he overtook Mr Chamberlain. The judge did not, however, accept the account of the claimant as to the detail of the accident. He summarised it in this way. He said of the claimant's evidence:
“He says that he looked down the road, having pulled out from behind the Transit and having looked at the indicators on the tractor, which were not illuminated, he thought it safe to overtake.
It was only at the last minute, without warning, that the tractor, at undiminished speed, swung into Dennetts Field and so it was the collision took place.”
7.	As already indicated, the judge preferred the evidence of the claimant and Mr. Chamberlain that the indicator light was on, and also as to the speed of the tractor i.e. that it slowed down to make its turn. He summarised the position thus in respect of the defendant:
“The result of that is, that this tractor was taking up a position to execute a manoeuvre that it had forewarned those following, some time before, that it was about to do.”
8.	That said, the judge nevertheless found fault in what the defendant had done in this way:
“Mr. Stevenson described in his statement how he had mirror, signalled, and manoeuvred, but equally made it clear that he was looking about him and looking into his mirror immediately before he turned right, so as to see if there were vehicles behind him, which he would have need to take account of.
What is abundantly clear, is that he did not see the motorcycle driven and ridden by Mr Irwin.
Mr Grice submits that in the split second that this accident must have taken place in, it is not surprising that Mr Stevenson did not see the motorcycle which was coming up behind him. In that sense, there is no fault or no want of care in Mr Stevenson's driving of the tractor.
By contrast, Mr Pearson submits that Mr Irwin, with his headlights on, as indeed the evidence suggests they were, was there to be seen coming up behind this tractor.
Mr Chamberlain remembers lights coming up behind him, whether they were a motorcycle or a car, he cannot say, but immediately afterwards, he was conscious of the motorcycle, Mr Irwin, being to his offside some two feet from the offside of his vehicle. At that point he was some 60 feet, he estimates, behind the tractor.
It follows that the motorcycle was there to be seen. I accept it may have only been there briefly to be seen, but it was there to be seen and the fact remains that Mr Stevenson did not see it.
I am of course alive to the argument that I am not to impose a counsel of perfection upon Mr Stevenson's driving. To show a want of care on his part which amounts to negligence, there would have to be a departure from the standard of the prudent driver.
In my judgment, the prudent driver would have checked in his mirror and looked over his shoulder immediately before he executed the manoeuvre. After all, he was crossing the opposing carriageway and he had to be alive to the fact, not only of oncoming traffic but traffic coming behind him, which might want to overtake him.
It is a fact Mr Stevenson did not see the motorcycle and it seems to me that in that failure, he too must bear some responsibility for this accident. There was a want of care, as much as there was in Mr Irwin, for failing to take account of the slowing tractor and the indicator working to the right.”
9.	He then went on to hold both drivers equally responsible, the gravamen of his finding against the claimant, though not expressly stated, being that he attempted to perform a double overtaking manoeuvre of two slowing vehicles, the front one of which was indicating that it was going to turn right across his path.
10.	In making his submissions on this appeal, Mr. Sharpe QC for the defendant accepts the judge's findings of primary fact as to the speed and distances of the vehicles and the occurrence of the accident, but he attacks his conclusion that the defendant was negligent in failing to observe the motorcycle before the moment of the accident, and in particular in time to refrain from the turn that he was otherwise safe and entitled to make.
11.	In this respect Mr Sharpe relies not only on the judge's primary findings of fact but also on (a) the express acceptance in evidence by the claimant that, if the tractor was turning, there would have been almost no time for the driver to see the overtaking motorcycle at all, and (b) the view of Mr Chamberlain, as stated in evidence, that when he became aware of the motorcycle beside him he regarded an accident as unavoidable.
12.	On the basis of the evidence and the findings which I have outlined, Mr. Sharpe has submitted that, in holding that the defendant, who would have been unable to observe the claimant until after he moved out from behind the Transit van in order to overtake it, should nonetheless have seen the claimant in what was at most the one and a half seconds (probably less) during which he was “there to be seen”, the judge imposed the very counsel of perfection upon the defendant which he had warned himself against. Mr. Sharpe submits that the judge was in effect holding that throughout the manoeuvre he was undertaking the claimant was obliged continuously to observe to his rear, rather than maintaining an eye on the oncoming traffic and looking where he was going as he was about to make, and actually making, his move to drive through the gateway. Mr Sharpe submits that that was unrealistic. That conclusion is enhanced when, as the judge did not appear to do, one has regard to reaction time as part of the assessment of time during which the defendant, even if he had seen the claimant, would have had time to desist from making his turn.
13.	Mr. Sharpe submits that, in the time that the defendant would have been reacting to any new information, say one second, the claimant would have closed the gap on the tractor at least 60 feet, and would have collided with it. There was therefore nothing the defendant could do to avoid the collision in this period, and thus the claimant fails to make out any causative nexus between the failure to look in the mirror during that period of a second and the collision.
14.	Mr. Sharpe submits, in my view correctly, that these various matters were really glossed over by the judge in his observation that the defendant should have checked his mirror immediately before making his turn. The claimant, as Mr. Sharpe submits, appeared to recognize the reality of that position himself when he agreed that the defendant in steering the tractor round the corner would have had almost no time to see the motorcycle coming up on the outside if it had just pulled out from behind the Transit. Moreover, it must follow from the fact that, as soon as Mr Chamberlain saw the motor cyclist, he thought the motorcyclist was going to hit the tractor, that the tractor was turning or at the point of turning when Mr Chamberlain first saw the motorcycle, otherwise there could have been no reason for Mr Chamberlain to expect a collision. While it was the judge who had drawn out this evidence with a question of his own, he appears to have overlooked it in his judgment. It means that the tractor's manoeuvre had commenced, or at any rate that the tractor driver was committed to it, without any real opportunity for avoiding action. His attention would have been concentrated on the turn before the motorcycle came alongside Mr Chamberlain, and it was thus almost inevitable that he should not have observed the motorcycle.
15.	Mr. Sharpe summarizes it in this way. He submits that when the defendant started or committed to the manoeuvre, the evidence does not establish that the claimant was there to be seen; that once the defendant started his manoeuvre there was no obligation on him to maintain a continuous watch on the road behind, when he had other areas upon which he was to maintain a watch as well; and that, even if he should have had a glance over his shoulder during the one to one and a half seconds at most when the motorcycle came out to overtake the Transit van, there would have been insufficient time for the defendant to react to that new information and abort the turn.
16.	Against those powerful submissions, Mr Clemens for the claimant has argued that it really is not appropriate for the court to overrule or tinker with the findings of the judge. His skeleton argument starts with the submission that the claimant concedes that on any reasonable interpretation of the facts, his attempt to overtake two vehicles was the primary factual cause of the accident, in the sense that he was undertaking a more dangerous manoeuvre than the appellant. However, he submits that, nonetheless, the judge was correct to find that the defendant was himself liable and to apportion the liability on a 50/50 basis. He submits that the judge was correct in his assertion that prior to the accident the motorcycle was there to be seen and that, in so holding, he was finding a neglect by the defendant to check his mirror adequately. He says that, unless it can be demonstrated that the judge misdirected himself in that respect, this court should not interfere with his decision. He says that vis-a-vis the driving of the defendant, the trial judge correctly identified the issue as whether, as a matter of priority, he should have checked his rear view mirror immediately before starting his right turn manoeuvre. In resolving that issue, he says that the judge did not fall into error by failing to analyze the evidence in relation to timing and distance. His finding that the motorcycle was there briefly to be seen was supportable on the evidence of timing and distance. He makes the point that the reliance on the evidence of Mr Chamberlain that the accident was inevitable is misplaced, because it does not address what should reasonably have been expected of the defendant before he commenced his manoeuvre at all.
17.	There have been various arguments before us of detail and surmise but, in my judgment, on the basis of the findings of the judge and the evidence which I have summarised, the sequence and circumstances of the accident are clear. The argument for the claimant has been and remains that the judge was right to place a heavy burden on the defendant in the circumstances that he intended to turn across the carriageway in the manner in which he did. What the submission boils down is that the judge was correct because (while he did not say so) the onus was upon the claimant to foresee that, despite the fact that the vehicle behind him appeared to be slowing to let him make his turn, there might be an impatient driver among the vehicles yet further behind, whether a motorist or a motorcyclist, who might seek to overtake not only the Transit van behind him but the tractor itself, although at the time it had for some distance indicated that it was going to turn right.
18.	I cannot agree. In my view, the defendant, having indicated his intentions and slowed down in circumstances when the vehicle behind was similarly slowing to allow him to make his turn, should not be regarded as negligent for failing to guard against the possibility of a vehicle appearing at the last moment in a double overtaking manoeuvre. The defendant had for some time had his indicator light flashing to indicate his intentions, and the following traffic, of which he was aware, had been following him in an orderly fashion. It must be remembered that he had a bright orange light flashing on top of his cab which made his presence as a tractor or some heavy vehicle proceeding slowly along the road obvious, and its indicator light made clear that it proposed to turn right. I would accept that, before he embarked upon his turn, the claimant should have checked the position in his mirror. The judge did not suggest that he doubted the claimant's evidence in broad terms that he had, very shortly before the accident, been keeping an eye on the traffic behind. The judge placed his finding of negligence on the failure of the defendant to look into his mirror or over his shoulder during the period that the motorcycle 'was there to be seen', ie as it emerged from behind and overtook the Transit van. I am satisfied, on the basis of Mr Sharpe's submissions, that the motorcycle was there to be seen for no more than one and a half seconds at most, for part of which the tractor had already embarked on the manoeuvre, and it would have been quite unreasonable to suppose that the claimant should have kept looking behind him as opposed to concentrating on the road ahead and his turn across it. In short, it appears that the motorcycle moved swiftly out from behind the Transit van in a double overtaking manoeuvre which the defendant had no reason to anticipate, and that that was the overwhelming cause of the accident. I would allow the appeal and hold that the defendant was not negligent. In those circumstances, arguments as to contributory negligence do not fall to be dealt with.
19.	SIR ANTHONY EVANS: I agree. The defendant was driving his tractor at a fair speed along this country main road, perhaps close to its maximum of 26 mph. There was a Transit van behind him and that was followed by some other vehicles whose headlights he could see. With a view to turning right into a gateway on the offside of the road, the defendant reduced the speed of the tractor to a pace which is not criticised, perhaps 10 mph. He checked the vehicles behind him in his mirror and signalled that he was turning right. The Transit van following him slowed down also but perhaps by not so much. There was some traffic approaching from the opposite direction but the headlights were a good distance away. All that can be said by way of criticism of the defendant is that if he had looked in his mirror immediately before turning or had turned round to see directly whether there was any vehicle overtaking both the Transit van and his tractor, he would have seen the motorcycle's headlights and had time to delay turning right until the motorcycle had gone by.
20.	Counsel for the claimant, Mr Clemens, has made attractive submissions emphasizing that the defendant could have looked around or into his mirror during that last short period before turning, that he should have realised that any danger would come from behind and that there might be another vehicle, whether a motorcycle or a car, which would fail to see the tractor's indicator and fail to appreciate that it was turning right. If he had looked, Mr Clemens submits, he would have seen the motorcycle and would not have embarked upon the turn.
21.	These submissions, like those of Mr Sharpe QC for the defendant, have concentrated on the period during which the defendant could have seen the motor cycle, in other words, from the time when the motorcycle pulled out from behind the Transit van and commenced its overtaking manoeuvre. Mr Sharpe says that that was 1 to 1.5 seconds. Mr Clemens says that it was more, maybe as much as two seconds. For the purposes of deciding whether the defendant was at fault, it is only fair in my judgment to consider the whole of his manoeuvre from his point of view. In that context, I do not think that he can be criticised for concentrating on the turning manoeuvre itself and on the road ahead of him during the last one or two seconds before the steering wheel was actually turned. He had already checked what traffic was following him. The Transit van behind him was slowing down and its driver knew exactly what was going on. There was no reason why the defendant should realise that a motorcycle or any other vehicle would pull out to overtake both vehicles at the same time or that, if any vehicle did so, its driver would fail to see the tractor's indicator lights. That is what occurred. I do not think that the defendant can be blamed. Even if attention is focused on the period after the motorcycle pulled out, and it was more rather than less than 1.5 seconds, which the defendant accepts, the corollary is that the claimant had a longer period within which to see that the reason why the tractor had slowed was that it was turning right. It is clear that the claimant failed to see this. That, in my judgment, was the sole cause of the accident. The defendant was not at fault and was not even partly responsible for it.
Order: Appeal allowed with costs here and below; detailed assessment.