Case No: B3/2012/1205/QBENF
Neutral Citation Number: [2013] EWCA Civ 229
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
HIS HONOUR JUDGE ARMITAGE QC sitting as a Judge of the High Court
0MA90087
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 21st March 2013
Before :

THE MASTER OF THE ROLLS
LORD JUSTICE ELIAS
and
LORD JUSTICE PATTEN
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Between :

	MRS MELANIE WHITEHEAD (A PROTECTED PARTY PROCEEDING BY HER LITIGATION FRIEND, AMY ENGLISH)	   Claimant	
	- and -		
	MR STEVEN BRUCE	Appellant/ First Defendant	
			
	SYLVIA CRAIG	Second Defendant	
			
	MR CARL BAXTER	Third Defendant	

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(Transcript of the Handed Down Judgment of
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Mr Michael Pooles QC (instructed by  DAC Beachcroft LLP) for the Appellant/First Defendant
Mr Stephen Grime QC (instructed by Ford & Warren) for the Cross-Appellant/Second Defendant
Mr Alan Jeffreys QC and Mr Andrew Peebles (instructed by Messrs Greenwoods) 
for the Third Defendant

Hearing date : 12 March 2013
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Judgment
Lord Justice Elias :

1.	This is an appeal against the decision of His Honour Judge Armitage QC who, following a 3 day trial in April 2012, found that the claimant was entitled to damages for injuries caused in a road traffic accident.  The judge held that each of the three defendants was liable in negligence. 
2.	The circumstances of the accident, in summary form, were as follows.  On 21 March 2009 at approximately three in the afternoon, the Claimant and First Defendant, Mr Bruce, were riding together as pillion passenger and motorcycle driver respectively on the A143, which had the character of a country road.  They came to a bend in the road and saw the car of the Third Defendant, Mr Baxter, which had broken down and was parked close to the bend on the other side of the road.  The Second Defendant, Mrs Craig, was overtaking the stationary car and was on the wrong side of the carriage way apparently blocking the First Defendant’s way. The First Defendant believed that there would be an accident and took evasive action.  He broke sharply, which caused the rear wheel to lock and the bike to skid, and he then chose to “lay-down” the motorcycle in an attempt to avoid or minimise injuries. The Claimant and the First Defendant both slid along the road and were seriously injured.
3.	The judge found that the negligence of each defendant had contributed to the claimant’s injuries.  He apportioned liability between them as follows: the First Defendant 50%, the Second Defendant 20%, and the Third Defendant 30%.
4.	The First Defendant now appeals both the finding that he was liable and, in the event that he fails in that submission, the judge’s apportionment of liability between himself and the Second Defendant; he submits that he was less culpable than the latter. The Second Defendant in turn cross-appeals on the grounds that the judge ought not to have found her liable at all. She accepts that if she was, there is no criticism of the judge’s apportionment.  The Third Defendant accepts liability and is not concerned about apportionment provided that his portion is not increased beyond the 30% allocated by the judge.
5.	Each of the three defendants was represented by Leading Counsel in the appeal.  The Claimant has not participated, no doubt because she is not concerned with the outcome: she was not at fault and will recover her damages from someone whatever the result of the appeal.
The facts.
6.	The judge heard evidence from each of the defendants but not the Claimant, who was too ill.  There were two other witnesses of fact, as well as police and expert witnesses. Each defendant instructed an expert in accident reconstruction and they produced a joint report highlighting areas of agreement and disagreement. 
7.	The judge analysed the evidence in extensive detail by considering the evidence relating to each defendant in turn.  I now summarise what I take to be his principal findings of fact.
8.	The Third Defendant was driving his red Rover saloon car along the A143 near Fritton. It was around 3pm on a Saturday afternoon on 21 March 2009. He was driving in fourth gear at about 50 mph. As he was travelling uphill his engine malfunctioned due to a failure of the rotor arm, and the car lost power as it went up the slope. He “blipped” the engine but it was dead at the crest on the hill. He went down the other side of the hill passing an entrance to a field on the left only a very short distance after the crest. There was a grass verge on his left. He then passed a second field entrance (perhaps disused) which was just before the point where he stopped. He coasted over to the side of the road, coming to a halt immediately adjacent to the verge at a point where overtaking for cars in his lane was forbidden.
9.	The Third Defendant said in evidence that he realised that he needed to get off the road but hoped that the car would “come good”, as he put it.  When he stopped, he put on his hazard warning lights. He got out and raised the bonnet. At the time of the accident he was standing in front of the bonnet, positioned at or near the corner furthest into the road, looking into the engine. 
10.	The judge found that he had sufficient momentum to have parked on the grass verge where at least half the width of his car would have been on the verge.  This would have allowed more room for overtaking cars. Alternatively, he might if necessary have parked in the mouth of the second entrance to the field. Instead he parked on the road at the point where there was a solid white line forbidding overtaking by cars travelling in his direction. The judge found that it was almost inevitable that following drivers would attempt to pass him, crossing the solid white line to do so. 
11.	Shortly after the Third Defendant had stopped, a Toyota driven by the Second Defendant stopped behind him, waited and started to overtake. At that point no other vehicles were visible coming toward her. She overtook at a leisurely pace which did not exceed 10 mph and took a fairly wide path around the Rover so that as she passed it her nearside wheels were on the central lines. 
12.	She was in the course of overtaking when the First Defendant’s motorcycle came into view around the corner. The potential distance of visibility at this point between the First Defendant and the Second Defendant was about 90 metres. 
13.	The Second Defendant saw the motorcycle. As it came towards her she stopped in reaction to it, part within her own lane and part within the oncoming lane (roughly half and half), with a distance of approximately 5m between the back of her car and the front of the Rover. 
14.	It was agreed between the reconstruction experts, and the judge held, that at that position, there was in fact sufficient width of road for the motorcycle to pass behind her and remain on the road. However, the judge concluded that this would not have been obvious to the First Defendant when he came round the corner. 
15.	The First Defendant, an experienced motorcyclist, was travelling towards the Toyota with his pillion passenger. As he came round what to him was a left hand bend, he was about two thirds of the way across his lane. He was driving between 55 and 60 mph and so was within the 60 mph speed limit. 
16.	The trees on his nearside blocked any clear sightline down the road, so that his view of the road in front unfolded as he travelled around the corner. The stationary Rover car was visible to him at about 110 metres. Although he was aware of it being there, he did not notice any of its salient features, namely that it was stopped, that it was at the very edge of the road with its wheels aligned with the white line contiguous to the verge, that it had hazard warning lights on, that the bonnet was up, and there was a person looking into it. The judge did not, however, draw any adverse inferences from the failure to appreciate these features because of the urgency of the situation.
17.	Very shortly thereafter the First Defendant became aware of the overtaking car. At this point it was substantially on his side of the road and about 90 metres away.  The judge found that he formed the reasonable impression that he would crash into the Toyota car unless he could stop before reaching it.  He took evasive action: he broke hard which put the motorcycle into a skid and at a point about 23 metres from the Toyota, and in order to minimise the risks to himself and his passenger, he laid down the motorcycle (or possibly lost control of it). He and his passenger slid along the road thereby suffering significant injuries. The motorcycle crashed into the Toyota.
The basis of liability and causation.
18.	The basis on which the judge found each defendant negligent, and their negligence causative, was as follows:
The negligence of the Third Defendant was that he had concentrated on keeping going rather than giving proper consideration to where he could stop safely. Had he pulled over onto the grass verge sooner, it would have been when there was a broken white line on the road, the overtaking cars would not have had to veer so significantly into the other lane, and the accident would have been avoided. Alternatively as a last resort he should have parked in the mouth of the second field entrance. His negligence was therefore causally relevant, albeit that it was not the proximate cause of the accident. 
19.	As to the Second Defendant, the judge did not think that she was negligent to overtake the Rover, or because she took a relatively wide berth around the stationary vehicle. Her liability was constituted solely by the fact that she had overtaken the Rover in too cautious a manner. There were two elements to this. First, she drove too slowly; second, she was in the wrong lane for much too long before returning to her own lane, presenting an obstruction to the oncoming traffic. Given the nature of the manoeuvre, she ought to have accelerated to clear the opposing lane as quickly as she could. Had she done that, the situation as perceived by the First Defendant would have been very different and the loss of control would probably have been avoided. Again, therefore, her negligence was causally relevant to the accident although the judge found that her degree of culpability was relatively low.
20.	As to the First Defendant, the judge concluded that he had ridden with excessive speed, given the particular circumstances. Notwithstanding that he was within the speed limit, he did not allow himself sufficient time to stop. He was not able to react safely to such emergencies as may have unfolded. The situation with which he was faced was not an unusual one; it was the kind of situation the First Defendant might have expected to happen in the normal course of events.  The judge considered that the degree of culpability was high.
The appeals on liability.
21.	As I have said, both the First and the Second Defendant challenge the judge’s   finding on liability against them. I will consider that issue with respect to each before analysing the arguments on apportionment.
22.	The basic legal principles are not in dispute. Where an appeal is against a judge’s evaluation of the facts, the Court of Appeal should consider the evaluation in the same way it would approach an appeal against the exercise of discretion (Manning v Stylianou [2007] EWCA Civ 1655 at para 19; Assicuriazioni Generali SpA v Arab Insurance Group [2002] EWCA Civ 1642 at para 16 per Clarke LJ). In the latter case, Clarke LJ cited the decision of Robert Walker LJ in Bessant v South Cone Inc [2002] EWCA Civ 763 who said (para 20): 
“[w]here the application of a legal standard such as negligence or obviousness involves no question of principle but is simply a matter of degree, an appellate court should very cautious in differing from the judge’s evaluation” (paragraph 20).
The liability of the First Defendant.
23.	The basis of this appeal is that the judge had no proper basis for concluding that the First Defendant was driving too fast.  In particular, counsel submits that the judge was critically influenced by positing an example, which he says was inappropriate and based on a false premise, in order to test whether the First Defendant was negligent.  The example which the judge adopted was this: he asked what would have happened if there had been a stationary HGV obstructing the First Defendant’s lane at the point where he saw the Toyota car (about 90 metres away) because, for example, there was a tractor ahead turning into, or coming from, an adjacent field. The judge estimated, on the basis of his assessment and expert evidence about stopping distances, that in all probability the First Defendant could not have stopped in time to avoid a collision, albeit at a low speed.  If the HGV had been at the point where he first saw the Rover (some 110 metres away) he might have stopped.  
24.	The First Defendant, as I understand the argument, says that this example misses out a key feature of the actual facts. The Toyota was not stationary but was moving towards him around the bend.  Accordingly, he might have seen it sooner than if it remained stationary, depending upon the curve of the bend, and so he could have had longer to brake than if it had remained stationary. There was simply no evidence about that. Had the judge appreciated this possibility, he could not have relied upon this example.  
25.	I do not accept this submission for two reasons. First, I do not think that this example was critical to the judge’s decision.  His basic analysis was that the speed was too fast for the nature of the road: it was a country road with a number of bends; visibility around the bends was limited because of roadside vegetation; and as the experts accepted, the difficulties for a motorcycle to stop in an emergency were more difficult than for a car, at least on a bend. Indeed, as the judge said, this was a perfectly foreseeable set of circumstances and the fact that the First Defendant was not able to cope with them of itself suggested that he was driving too fast.
26.	Second, I do not agree that the example given was inappropriate.  I do not accept that the fact that the Second Defendant was moving towards the First Defendant undermined the judge’s conclusion.  Indeed, it seems to me that the judge was right when he observed that the fact that Mrs Craig’s movements were uncertain, and that she might have been closing the gap, in principle made the situation worse. I accept that in theory that fact might not have done so, if the curve of the bend was such that it enabled the First Defendant to see the Toyota earlier than he could the hypothetical HGV. But that would be a fortuitous feature depending on the particular nature of the bend.  It does not invalidate the basic point, that for a stationary vehicle, the First Defendant was driving too fast. The judge was entitled to conclude, as he did, that in the circumstances it was not surprising that the First Defendant was unable to avoid a collision. 
The liability of the Second Defendant.
27.	The Second Defendant submits that the judge erred in two respects in finding her liable. First, he was wrong to conclude that her slow driving past the stationary car amounted to negligence.  Second and in any event, on a proper analysis of the evidence the judge could not properly conclude that any negligence actually caused or contributed to the injuries sustained. 
28.	The submission with respect to the slow driving is that she had done no more than many reasonable drivers would have done. She was concerned about the safety of those who might have been in the Rover car and acted sensibly in giving the vehicle a wide berth and driving slowly past it. 
29.	I reject that submission.  In my view, the judge was plainly entitled to say – and in my view any other finding would have been perverse - that given the fact that she was crossing a solid white line into the path of oncoming traffic, it was incumbent on her to remove herself from that situation as soon as she could. In any event counsel does not challenge the finding that she delayed unreasonably in getting back into the appropriate lane, and that of itself was negligent quite independently of speed.  The judge reached the following conclusion which was in my view manifestly justified by the evidence: 
“Provided she “got on with it” the risk was acceptably small for her and for oncoming traffic. The reverse is the case if she dawdled driving through the danger zone. The combination of an unnecessarily slow speed with unnecessarily long distance to travel caused Mrs Craig’s car to be an obstruction to oncoming traffic for a negligently excessive period of time”.
30.	The second aspect of the cross appeal on liability is that counsel submits that the judge was wrong to find that there was any causal connection between her negligence and the injury suffered by the Claimant and the First Defendant. In substance, the contention here is that the finding of the judge was that the First Defendant was faced with a dilemma given that the Third Defendant was occupying a substantial part of the road ahead of him; he had to react rapidly and is likely to have panicked, and that caused him to set the motorcycle down. In the circumstances it may well have been the case that he would have taken precisely the same action if the Second Defendant had blocked his path even had she been overtaking speedily.  The onus is on the First Defendant to establish causation applying the “but for” test, and he had failed to discharge that burden.  The judge’s finding on causation was expressed in bald terms without any proper reasoned explanation, and does not show that the “but for” test was satisfied. 
31.	I do not accept that submission.  The judge concluded in terms that had the Second Defendant re-entered her own lane more speedily:
“ … Mrs Craig’s car would have ceased to be an obstruction to oncoming traffic earlier and Mr Bruce’s loss of control might have been avoided”.
I accept that the judge there only says “might” and not “on the balance of probabilities would” have been avoided.  But it is plain reading the judgment as a whole he was making the latter finding. At paragraph 99 the judge said in terms that the accident would not have happened but for the Second Defendant’s negligence. That is, in my judgment, an unequivocal and, when considered with the findings of negligence, an adequately reasoned finding by the judge with respect to causation which satisfied the “but for” test. Moreover, it was plainly supported by the evidence. In the Joint Statement of the Reconstruction Experts there is agreement that (para 8.4): 
“Had Mrs Craig turned back to her side of the road sooner on clearing the Rover car, or proceeded more swiftly round the car (but well within the capabilities of the Toyota car and the range of ordinary driving), and even in the event of Mr Bruce doing nothing different (i.e. losing control of the motorcycle in the same manner) the Toyota car would have cleared his path when he, his motorcycle and pillion passenger reached the area where the other cars were passing the stationary Rover. As above, these different actions by Mrs Craig might have presented a different scenario to Mr Bruce, who might then have reacted differently.”
32.	I accept that this is not going so far as to say that the First Defendant would have reacted differently on the balance of probabilities test, no doubt because that was a decision for the judge. But the evidence of the First Defendant himself is highly pertinent: he said in terms that he had initially braked because he thought that this would give the Second Defendant time to move into her own lane. So far as he was concerned, it was not at that point an inevitable accident. 
33.	This is in my view the answer to the Second Defendant’s point on causation, and it accords with human experience.  The First Defendant would naturally, if almost instantaneously, have formed some perception of the speed and line of travel of the Third Defendant before deciding how to respond.  There is every reason to suppose that had the Second Defendant swiftly passed the Rover and moved speedily back to her own lane, that would have presented a very different set of circumstances to the First Defendant and would have elicited a different response. The plain inference, accepted by the judge, that the accident could have been avoided had the Second Defendant acted in that way, was no more than a common sense analysis of the evidence. We were referred to a number of cases dealing with the question of discharging the burden of proof in negligence cases.  In my judgment there is no need to engage with that issue here; the judge in my view applied the “but for” test and had ample evidence to sustain his decision.  I therefore reject this aspect of the appeal. 
The question of apportionment.
34.	So far as the question of apportionment is concerned, it is well established that it will require a very strong case before the court will interfere with such a finding. The classic approach was set out by the House of Lords in The MacGregor [1943] AC 197 where the court emphasised that it would only be in exceptional circumstances that an appellate court should interfere with a judge’s conclusions on allocation of blame. As Lord Wright put it (p. 201), such a finding is: 
“.. different in essence from a mere finding of fact in the ordinary sense. It is a question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations.  It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds. It is for that reason, I think, that an appellate court has been warned against interfering, save in very exceptional circumstances, with the judge’s apportionment.”
35.	As Gage LJ pointed out in Wells v Mutchmeats Ltd &Anr [2006] EWCA Civ 963, quoting in turn certain observations of Brooke LJ in  Plumb v Ayres and Ryford  The Times, May 11, 1999, exceptional circumstances may arise where the judge erred in principle, misapprehended the facts or he is clearly shown to have been wrong.  
36.	The judge did not give much by way of explanation for his decision on apportionment. However, he did say that the Second Defendant’s degree of culpability was relatively low “and she had not created the difficult situation”, and that by contrast the First Defendant’s culpability was relatively high.  
37.	Mr Pooles QC, counsel for the First Defendant, accepts that in the light of the authorities he has a very high hurdle to cross in seeking to set aside the judge’s conclusion on this point. But he submits that this was a case where the apportionment simply should not be allowed to stand.  The judge found each defendant contributed to the accident and the apportionment appears to have been based on the degree of culpability. Mr Pooles submits that the judge was wrong to characterise the Second Defendant’s degree of culpability as relatively low, and it was simply factually incorrect to say that she had not created the difficult situation. She did precisely that; it was her obstruction of the First Defendant’s path for an excessive length time which created the situation which constituted the essential cause of the accident.  It was not a just or rational distribution of liability to perceive her culpability as the lowest of each of the defendants.
38.	I bear very much in mind the injunctions in the authorities warning the appellate courts against interfering in apportionment matters.  But in my judgment the judge below has mischaracterised the contribution of the Second Defendant in this case. I do not, with all respect to the judge, think that it can properly be described as relatively low.  She was, albeit through no fault of her own, forced to overtake and move into the opposite carriage way at a point where she necessarily posed a potential danger to oncoming traffic.  It was highly incumbent upon her in those circumstances to return to her own lane with all due despatch and she failed to do that. Instead she undertook the manoeuvre in a most lackadaisical manner and even failed to return to her side of the road when she could and should have done so. 
39.	In these circumstances I am satisfied that the apportionment of only 20% for her portion of blame and 50% for the First Defendant was premised on an erroneous balance of culpability and was outside the range open to the judge.  It seems to me that she was at least as culpable as the other two defendants. No-one has suggested that the apportionment of 30% for the Third Defendant is inappropriate and I would leave that where it is.  I would redistribute the apportionment as between the First and Second Defendants so that each bears 35% of the liability.   
40.	Accordingly, I would dismiss the appeal and the cross-appeal on the issue of liability, but would uphold the appeal with respect to the apportionment issue. I would apportion liability as between the defendants in the following way: First Defendant 35%; Second Defendant 35%; Third Defendant 30%. 
Lord Justice Patten:
41.	I agree.
The Master of the Rolls:
42.	I also agree.