Case No: B3/2008/1354
Neutral Citation Number: [2009] EWCA Civ 106
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN’S BENCH DIVISION
(HIS HONOUR JUDGE SEYMOUR QC)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 3rd February 2009

Before:

LORD JUSTICE MUMMERY
LADY JUSTICE SMITH DBE
and
LORD JUSTICE HUGHES

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Between:

	MINH LAC & ORS	Respondents/Claimants	
	- and -		
	
CLAYTON	Appellant/
Defendant	

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(DAR Transcript of 
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Mr S Snowden (instructed by Edwards Duthie) appeared on behalf of the Appellant.
Mr N Spencer-Ley (instructed by MTA) appeared on behalf of the Respondent.

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Judgment
Lady Justice Smith:

1.	This is an appeal from a decision of HHJ Seymour QC, sitting as a High Court judge on 20 May 2008.  His decision related to a road traffic accident which occurred in November 2003 on the eastbound carriageway of the Canning Town flyover, which is part of the A13 trunk road.  A collision occurred between a Rover motor car driven by the defendant, Mr Clayton, and a Volkswagen Polo which, until a short time earlier, had been driven by Mr Minh Lac, the first claimant, but which at the time of the collision was stationary in the nearside lane of the carriageway.  Mr Lac and his two passengers, Mr Phi Ly and Mr Duong, who were standing close to the Volkswagen, were injured in the collision, the latter fatally.  
2.	The defendant admitted primary liability for the accident but contended that the three men had negligently contributed to their injuries.  It was suggested that they should have moved away to a position of greater safety.  The judge held that there had been no contributory negligence.  The appeal lies against that holding with the permission of the Vice President of the Court of Appeal.  
3.	The judge’s findings of primary fact are not challenged.  They are as follows.  At the material time the flyover comprised four lanes, two in each direction, separated by a metal crash barrier on a narrow raised central reservation.  On the nearside of the eastbound carriageway there was a narrow kerb, a metal crash barrier and a corrugated metal fence.  The crash barrier was about 1.5 metres in height; the corrugated fence about 2 metres high.  The road was subject to a 30mph speed limit.  
4.	The accident with which we are concerned took place at about 9.00 in the evening.  It was dark and drizzling with rain.  Shortly before the accident there had been a spillage of diesel oil on the eastbound carriageway of the flyover.  There is no finding as to the position or extent of the spillage but it appears to have been quite widespread.  As Mr Lac approached the flyover he was travelling in the outside lane.  He saw that a number of vehicles had drawn up on the left side and had hazard lights flashing.  He realised there had been an accident.  He proceeded up the flyover and when on the brow became aware of a car in the nearside lane swerving from side to side, apparently out of control.  Mr Lac braked hard.  He lost control of his vehicle and it came to a halt, without being in collision with the other car but with its offside wheels on the raised kerb of the central reservation.
5.	Mr Lac decided he must move his car to a safer position.  In fact it had sustained damage to the front offside wheel.  He drove it some way down the flyover carriageway and stopped it just behind two other cars, a Peugeot and a Ford Fiesta, which had stopped on the left in the nearside lane.  Those vehicles had apparently been involved in some kind of incident due to the spillage.  Having brought the Volkswagen to a halt, all three men got out.  All three went to look at the damage to the front wheel.  Mr Duong then set off walking back towards the brow of the flyover, apparently upset.  The others called him back and he returned.  He had walked only about 20 to 25 feet.  It appears that Mr Ly then remained near the offside front of the car but Mr Lac went to stand on the raised kerb near the front of the vehicle and Mr Duong stood beside him but just in the roadway.  
6.	Within a short time -- the judge was later to find that this was between one and two minutes after they had alighted from the Volkswagen -- the defendant’s car came over the brow of the flyover, out of control, and collided with the back of the Volkswagen.  It was a collision of some force.  The Volkswagen was pushed forwards and into rotation.  In fact it turned through about 90 degrees, so that it was facing south.  It also mounted the kerb.  The effect was that Mr Lac and Mr Duong were swept onto the bonnet and into collision with the windscreen.  Both were injured, Mr Duong fatally so.  Mr Ly, who had been near the offside front of the car, was also injured but less seriously than the others.  
7.	The allegations of contributory negligence against all three men were that they should have moved away from their car further down the slope of the flyover to a position of greater safety, as they should have foreseen the risk that another vehicle would come over the top, out of control, by reason of the spillage.  In particular, it was said that they should have done so because the Highway Code instructs that that should be done. 
8.	Mr Steven Snowden, who has appeared for the appellant here and below, submitted that the three men had failed to heed the provisions of the Highway Code.  Section 38(7) of the Road Traffic Act 1988 provides that any failure to observe a provision of the Code may be relied upon in civil proceedings as tending to establish liability.  
9.	Mr Snowden relied, in particular, on paragraphs 249 and 257 of the Code.  Paragraph 249 is headed “Additional rules for the motorway”.  It advises that if your vehicle develops a problem you should leave the motorway if you can, but if not, you should pull on to the hard shoulder as far as possible to the left.  Then you should leave the vehicle and ensure that passengers keep away from the carriageway and hard shoulder. As the judge observed, this paragraph applies specifically to motorways and therefore did not apply to this accident.  As to that, Mr Snowden submitted that the instructions should apply by analogy.  The judge rejected that submission and pointed out that there was here no hard shoulder, only a narrow raised kerb and no opportunity to move away laterally.  The only option was to move along the kerb, either up or down the flyover.  
10.	Mr Snowden also relied on paragraph 257, which provides instructions on what to do following an accident.  One aspect of the advice is that the driver should move uninjured people away to a position of safety.  On a motorway this should, if possible, be well away from the traffic, the hard shoulder and the central reservation.  Here again, Mr Snowden submitted that the Code should be applied by analogy.  The judge was unimpressed by that, but at paragraph 9 of his judgment he said: 
“However, it remains to consider whether, nonetheless, any of Mr Lac, Mr Ly or Mr Duong was guilty of contributory negligence either by standing where he respectively was standing at the time Mr Clayton’s car hit the Volkswagen Polo, or by not having moved further away from the Volkswagen Polo than he had.”
11.	The judge then went on, after making some findings of fact, to reject the submission that the men had been negligent in staying by their car.  He noted first that, by the time the car had stopped and the men had got out, all three men had realised that there was some sort of spillage on the road, that the road surface was slippery and that there had been a number of small collisions as a result.  He held that they should have realised that there was a risk that further collisions might occur. However, he held that by the time the Rover collided with them they had not given any thought to their predicament.  That was because they were shaken by the events which had occurred in the last minute or two.  Their main concern had been to move the car off the central reservation and then to consider whether it would be possible to drive the car away.  They had not gone much beyond that.  The judge was of the view that people who had just been involved in incidents such as this one could not be expected to exercise fine judgments.  In effect, he was not persuaded that the men could be criticised for failing to give any thought to the safety of their position.  
12.	In addition, the judge was not satisfied that even careful thought would have necessarily resulted in a decision to move away from where they were.  At paragraph 16 of the judgment (line 33) he said this: 
“If they had considered their position dispassionately it is far from obvious, as it seems to me, that they must have concluded in the interests of their own safety that they should move away from the Volkswagen Polo.  That vehicle was in fact in the nature of a shield against being hit by a vehicle which had lost control which a pedestrian standing beside the road with nothing between himself and the carriageway would not have had.  Given the speed limit applicable to the flyover it was not to be anticipated that a high speed collision would take place.”
13.	Then, at paragraph 17, he continued:
“However, even in a high speed collision the Volkswagen Polo might provide some protection, whereas otherwise there would be none.  Standing in front of the Volkswagen Polo in theory afforded as much protection against a collision as standing beside it on the kerb because the car was still between the oncoming possible source of danger and oneself.”
14.	In this appeal, Mr Snowden has made three submissions.  First, he says that the judge was wrong to reject his submissions about the Highway Code.  He should have accepted that the Code gave relevant instructions which these men should have heeded.  Because the judge underestimated the relevance and importance of the Highway Code, his consideration of the whole issue of contributory negligence was affected, indeed flawed.  
15.	It seems to me that the Highway Code was of some relevance to the situation in which these men found themselves.  Where the words of the Code do not strictly apply, as they did not here, there are nonetheless lessons to be learned from it.  The words of the Code can sensibly be adapted to different factual situations and applied as a matter of sound common sense.  As I understand the judgment, the judge was saying only that the Code did not apply directly, but he still to consider whether the men had failed to take proper care for their own safety.  The whole focus of that consideration was whether the men were negligent to have stood where they had instead of moving to some other position.  Thus, as it seems to me, the Highway Code did not impose any higher or different standard from that which the judge was about to apply in any event.  I do not accept that his approach to the Code resulted in any error in his thought processes.
16.	Second, Mr Snowden submitted that the judge had been wrong to hold that the men were not to be criticised for their failure to give thought the safety of their position.  He had earlier rejected the men’s claim that the accident happened only a matter of seconds after they had left the car and he held that there had been an interval of one to two minutes.  There had been time to realise the danger of their position and time to move to somewhere safer.  Mr Snowden submitted that, given that the judge had held that by the time they had got out of the car they realised that there was something slippery on the road, they should have been quickly aware of the treacherous nature of their position.  The judge, he said, was wrong to say that, because they were shocked or unsettled, the men were not to be criticised for their failure to think and act.  
17.	But, as Mummery LJ pointed out in argument, a person who has been shocked or unsettled does always think very clearly or very quickly.  These men had been in a nasty incident.  There was evidence that Mr Duong at least was very angry and upset.  He was angry with the driver who had caused the initial problem.  Apparently that driver had driven away from the scene.  It seemed to the judge that it was not surprising and not blameworthy that the men’s minds were focused for this short time on matters other than their own safety.  
18.	Despite Mr Snowden’s attractive argument, I am not persuaded that the judge was wrong so to hold.  He saw Mr Lac and Mr Ly give evidence and was in a better position than members of this court to decide whether, in the particular circumstances, their actions or failure to act should be criticised as negligent.  I am not prepared to overturn the judge’s holding on this point.   
19.	However, the judge did not leave matters there.  He observed that even if the men had considered their position carefully, it was not immediately obvious where they should go.  The judge was of the view that there was something to be said for the position they were in fact in, by the front of their own car.  Mr Snowden submitted that the judge was clearly wrong about that.  He argued that it was obvious, and should have been obvious to any reasonable person, that it would be much safer to move some way down the slope beyond the line of the three cars.  He accepted that there was no safe position for these men to move to.  There was some risk wherever they were on the flyover and they could not have been expected to walk all the way down to the bottom.  That would have been very dangerous.  But he submitted that there was clearly a position which would have been safer than the position in which the men remained.  The men should have realised that the risk of being struck by an out-of-control car would have been reduced the further away they went down the slope away from the brow of the flyover.
20.	 I confess that, having listened to Mr Snowden for about an hour this morning, I am now persuaded that there probably was a safer position for the men to have taken up and it would have been further down the slope, but I am entirely in agreement with the judge that it was not immediately obvious where would be the best place to go.  A decision as to the safest place to wait required some careful thought and an assessment as to the most likely manner in which an accident might occur.  I think that is what the judge had in mind when he said that men who have had a shock or who are unsettled are not able to make fine judgments.  
21.	In short, I am of the view that the judge’s decision cannot be criticised.  If these men had not been shocked or unsettled it may well have been negligent for them not to think about the safety of their position but, given that they were shaken, and given also that there was not an obviously safe place to which they would be drawn instinctively, I consider that the judge was right to hold that they were not negligent to remain where they were by the car.  Accordingly, I would dismiss this appeal.  

Lord Justice Mummery: 

22.	I agree.

Lord Justice Hughes:

23.	I agree.

Order: Appeal dismissed