Neutral Citation Number: [2007] EWHC 2529 (QB)
Case No: 6LS90079
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Manchester Civil Justice Centre
Bridge Street
Manchester
M60 9DJ

Date: 01/11/2007

Before :

MR JUSTICE TUGENDHAT
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Between :

	Peter Benedict Hughes	Claimant	
	(A Patient by his Father and Litigation Friend Brian Hughes)
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	Guise Motors Ltd	Defendant	

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Mr Adam Weitzman (instructed by Irwin Mitchell) for the Claimant
Alan Jeffries QC (instructed by Keoghs) for the Defendant

Hearing dates: 23rd October 2007
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Judgment

Mr Justice Tugendhat : 

1.	On the afternoon of Sunday 5th September 2005 Peter Hughes was driving a red Fiat Seicento in a westbound direction on the M62. His mother was with him, sitting in the passenger seat.  Just before 5pm the engine cut out, and the car slowed down, for reasons which remain unexplained. It came to a halt by junction 25 at a point near that junction of the M62 and the slip road by which the vehicles entered the M62 in the westbound direction.  
2.	Mrs Hughes recalls that the car had been travelling at about 60 mph and that Peter Hughes suddenly said “it’s cutting out”.  She remembered noticing the entry of the slip road on the left and that Peter Hughes tried to start the car engine by turning the ignition key without success.  She noticed that the car had stopped at the end of the chevrons. She looked to see if they could get out, and saw that there were cars travelling up the slip road, on her left hand side.   She was worried. When asked about this, she said in evidence, which I accept, that she thought it was not possible for them to leave the car, and that they would have been dead if they had tried. She heard Peter Hughes say “this is the worst place in the world to break down”.  She saw the hazard warning lights had been activated by Peter Hughes. She took his phone from his pocket and papers from under the dashboard to look for a telephone number for recovery services.  She recalled several cars overtaking, some with their hazard lights on. She said that the time before the collision felt like years to her, or like ten minutes.
3.	It was the worst place in the world to break down.  The stretch of the motorway immediately preceding where they were was on a downward gradient.  The stretch of the road in front was on an upward gradient.  That is one reason why the car stopped where it did.  The car was in the nearside lane.  There were therefore two lanes of motorway on the off side of the car and the sliproad on the nearside.  The hard shoulder of the motorway had come to an end some distance before the point at which the car had stopped.  The hard shoulder of the sliproad was the other side of the sliproad.  The traffic flow was relatively heavy that afternoon.  Mrs Hughes recalls Peter Hughes saying that people were driving too closely together.  Mr Turney, whose vehicle collided with the Fiat, in his evidence, described it as “heavyish traffic” entering junction 25.
4.	Whether the Fiat had come to a complete halt at the point of collision, and if so when and for how long, are matters that are in issue in this action.  But within minutes of the engine cutting out the Fiat was struck from behind by another vehicle owned by the defendant and driven by Mr Turney their employee.  The defendant’s vehicle is an Isuzu 2 axle recovery vehicle.  Mr Turney has pleaded guilty to careless driving.  There is an admission of liability by the defendant to the claimant.  The issue before me is a preliminary issue solely on contributory negligence.  
5.	Peter Hughes’s Glasgow Coma Score was assessed at 4/15 at the scene of the accident and 3/15 when he was admitted to Leeds General Infirmary, to which he was taken by helicopter.  He had suffered serious injuries to his head and in his chest, spine and abdomen areas.  He spent some time in intensive care. He continues to suffer significant impairment of his cognitive skills and abilities, of his ability to speak, and spastic paresis in his right upper and lower limbs, amongst other conditions.  He therefore makes a very substantial claim for damages for negligence. Mrs Hughes is not a claimant in this action.  Although she appears in good health, she was injured in the collision.  But her injuries were very much less severe than those of Peter Hughes.  
6.	The substance of the defence of contributory negligence rests on two propositions.  First it is said that Peter Hughes failed to steer or coast the vehicle onto the hard shoulder, or some other place that was safer than the one where the collision occurred.  Second, it is said that he failed to leave the car and position himself at a place of safety.  Reference is made to the Highway Code.
7.	Relevant provisions of the Code are in paragraphs 249 and 251 which include the following:
“If your vehicle develops a problem, leave the motorway at the next exit or pull into a service area.  If you cannot do so you should
•	Pull onto the hard shoulder and stop as far to the left as possible, ….
•	Leave the vehicle by the left hand door and ensure your passengers do the same…
•	If you cannot get your vehicle onto the hard shoulder…
•	Leave your vehicle only when you can safely get clear of the carriageway”.
The Law
8.	There was no significant issue between the parties on the law.  The Law Reform (Contributory Negligence) Act 1945 provides that where any person suffers damage as the result partly of his own fault and partly of the fault of any other person  the damages recoverable are to be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage.
9.	To establish a plea of contributory negligence the defendant must prove on the balance of probabilities that the claimant did not in his own interest take reasonable care of himself and that the claimant contributed to his own injury by this want of care.  The standard of care is objective, but if the claimant finds himself in a position of danger, then conduct by him which in fact operates to cause harm to him, but which is nevertheless reasonable in the agony of the moment, does not amount to contributory negligence.  Where there is an emergency, what is reasonable must be judged in that context.  Only if the claimant is judged to have been negligent does a question of apportionment arise.  If it does arise, the court does not just compare the relative blameworthiness of the claimant and the defendant but takes into account their respective responsibilities for the damage.  That is sometimes called the causative potency of their act.  A breach of the Highway Code, if it occurs, will not of itself mean that the claimant has been negligent.  
10.	For the claimant it is submitted by Mr Weitzman that Peter Hughes was not negligent at all.  This case does not depend upon an enquiry as to the negligence of Mr Turney, which is admitted.  But by way of an alternative, Mr Weitzman submits that even if the claimant might have been at risk of a finding of contributory negligence in other circumstances, in the particular circumstances of this case, namely what he characterises as the reckless driving of Mr Turney, there should be no such finding.  He relies on Houghton v. Stannard [2003] EWHC 2666(QB), citing Rouse v Squires [1972] 2All ER 903, 9 10 B-D.
The actions of the claimant.
11.	There were three people in the Isuzu.  Mr Turney gave no useful evidence as to what the claimant was doing immediately before the collision.  He barely saw the Fiat before he struck it. He took his foot off the accelerator, which on his vehicle produces some braking effect, but he did not even having time to apply the brakes.  He struck the Fiat as he moved from the middle lane to the nearside lane.  His recollection is such that he mistakenly believes the collision to have taken place in the middle lane of the motorway. The marks on the road demonstrate conclusively that he collision was in the nearside lane.
12.	Also in the Isuzu were Mr and Mrs Durkin.  They had had a breakdown in their Vauxhall Corsa and the defendant’s vehicle had come to collect them.  They were sitting in the rear seat of the extended cab.  Mr Durkin had a clear view of the road from his position immediately behind, and slightly higher than, Mr Turney.  Mr Durkin gave evidence.  But what he describes, important thought it is in relation to Mr Turney`s driving, casts very little light on what the claimant was doing.  The reason is that all he had time to see was the Fiat in the nearside lane moments before the collision.  
13.	Two witnesses who were able to give me very helpful evidence were Mr and Mrs Robins.  They were travelling together in their car, which Mrs Robins was driving westbound along the M62.  Mr Robins describes the traffic as medium.  He saw the Fiat in the centre lane ahead of himself and his wife.  His impression was that the Fiat was already stationary, but as his wife was driving at about the speed limit he could not discount that the Fiat might have been moving slowly.  He saw the front nearside of the Fiat turn slightly in towards the nearside lane with the front left wing protruding into that lane.  He did not at the time form an impression as to where the Fiat was in relation to the slip road. Later he was shown a DVD prepared by the police of the accident scene.  Having seen that he estimated that, when he saw the Fiat, it was within the range of 100 to 300 metres east of the chevrons where the sliproad joins the motorway.  
14.	Mrs Robins noticed the danger immediately and said “there is an accident waiting to happen”.  She was able to move into the offside lane of the motorway to overtake, and to do this without any hurried manoeuvre.  So concerned were Mr and Mrs Robins that they decided to telephone the police immediately.  However, they could not remember the number of the junction in question and so waited to see the next signpost in order to be able to identify the location precisely.  At that point he dialled 999.  The call was taken at the Wakefield call centre.  The call log includes a time 16:58. The message records that Mr Robins said that a vehicle was broken down in the westbound middle lane of the M62 at junction 25.
15.	The location of the collision was precisely identified by Mr Green, the accident investigator.  Gouge marks on the road surface corresponded to marks on the underside of the Fiat.  There was no doubt that the collision occurred when the Fiat was in the nearside lane approximately 14 metres west of the end of the chevrons between the motorway and the sliproad.  That is the point at which there is a broken line between the sliproad and the motorway.  At the point of the collision the road was on a slight uphill gradient of between 2% and 4% following a long downhill gradient for a distance of more than a mile.  On the approach to the point of collision, if the road is empty, there is good visibility of the road ahead for approximately ½ mile.  At that point the road is turning slightly to the left.  The collision was just to the left of marker post 95/3.
16.	Mrs Robins differs from that of her husband only in one respect, albeit an important one.  She states that when she saw it the Fiat was positioned alongside the chevron markings that were painted on the road surface and which had replaced the hard shoulder leading up to the entry road of the junction.  Thus she positions the Fiat further west than Mr Robins does.
17.	Mrs Robins realised that the Fiat was either moving very slowly or that it was stationary.  She recalls that the it was displaying flashing hazard lights.
18.	I accept the evidence of Mr and Mrs Robins where they agree.  Where their evidence differs, I prefer the evidence of Mrs Robins.  She was the driver, and recalled the position of the Fiat from her observation at the time. She did not have to reconstruct the position as Mr Robins did with the use of the DVD.  Unsurprisingly, as the driver, she noticed the danger first and remarked on it, and had to focus on the location of the Fiat in order to make the necessary manoeuvre to avoid it.  
19.	The next witnesses to see the Fiat were Margaret Phillips and her daughter Katy.  They too were driving in a westbound direction, Katy being the driver.  Margaret Phillips described the traffic volume as they approached junction 25 as moderate with all three lanes being in use.  They were travelling in the middle lane.  As they approached the access slip road at junction 25 Margaret Phillips recalled that they encountered a small, slow moving red car.  She was definite that is was still moving when she saw it although very significantly slower than their car.  She recalls that the red car appeared to be at an acute angle across a chevronned area which had replaced the hard shoulder to the left of the motorway as the sliproad and the main carriageway converged.  She and Katy commented that it was an awful place to be breaking down.  
20.	Katy Phillips recalls that she was driving in the centre lane at about 60 mph.  There was traffic in all three lanes both ahead and behind her.  The traffic to her right was travelling slightly faster than she was, and the traffic to her left was travelling slightly slower.  She describes the traffic volume as moderate.  As she approached the access sliproad she saw the small red car in the left hand lane which she thought was travelling much slower than the traffic which she had encountered in that lane up to that point.  She gave an estimate of its speed in the region of 20 mph, but it was only an estimate.  She said it was running alongside the area of chevrons which had replaced the hard shoulder just prior to the main carriageway and the access sliproad beginning to merge.  She said it was closer to the end of the markings than it was to the start of them.  Her immediate impression was that the vehicle was breaking down.  She believed that she formed that impression from seeing the hazard warning lights flash.
21.	Appreciating the danger of an accident she watched in her rear mirror as she drove westward.  While she was watching she saw the red car spinning round violently before it was lost to her view.  She did not see what caused the car to spin.  She believes that the car had passed the mouth of the sliproad when she saw that. 
22.	Katy Phillips reported what she had seen to her mother who called the police.  She dialled 999 immediately, and recalls that the call was answered within a matter of seconds.  She was asked for a location but was unable to give one accurately until they reached the next junction.  She remained on the phone until that point which was one mile before the next junction.  That call was taken at a different location, the Bradford call centre.  The log is timed at 17.00.  The message is “Car into the back of a B[roken] D[own] V[ehicle] in running lanes”.
23.	Mr Durkin was among the third set of witnesses to see the Fiat, and the last to see it before the collision. He recalls that when he first saw the red car, as Mr Turney pulled into the left hand lane, it was obviously stationary, and they were so close that it was plain that they had no chance of stopping before reaching it.  
24.	I find that the Fiat was stationary at the moment of collision.  A car whose engine has cut out when it is travelling at about 60 mph on a motorway will continue for some distance under its own momentum.  If it is travelling, as the Fiat was, on a downhill gradient which turns into an uphill gradient, it is likely to continue for some distance under its own momentum so long as the gradient is downhill, but unlikely to continue for more than a few metres once the gradient becomes uphill.  Mrs Hughes says she can remember the car stopping and I do not doubt that she was correct when she said that.
Could the claimant have reached the hard shoulder?
25.	Mr and Mrs Robins saw the Fiat in the middle lane.  Within minutes the collision occurred in the nearside lane.  I conclude that the claimant was attempting to reach the hard shoulder.  For the defendant Mr Jeffreys submits that the cut out must have occurred sufficiently to the east of the junction to have enabled the claimant, if he chose, to reach the hard shoulder on the motorway before the point at which the hard shoulder ceases and where it is followed by the chevron markings on the road.  I reject that submission for two reasons.  First, on the evidence before me I find it impossible to say where, on the balance of probability, the cut out occurred.  It can be no more than a matter of conjecture.  Second, even if the cut out had occurred some distance to the east, I could not find on the balance of probability that the claimant was able, if he had so chosen, to reach the hard shoulder at the point suggested.  The evidence is that there was traffic on all three lanes of the motorway at the time in question. It is a matter of common knowledge that it is not always easy to change lanes on a motorway when the driver wants to do so.  It is all the more difficult when the driver is without engine power.  Pulling into the left hand lane without engine power in front of vehicles coming up from behind would itself be a dangerous exercise.  
26.	In this instance, Peter Hughes is unlikely to have appreciated that the gradient was about to change from downhill to uphill at the point at which it does.  There is no evidence as to whether he was aware of the effect of the gradient in any event, but if he was aware that he was coasting down hill, he might well have reasonably supposed that the downhill gradient would be available to carry him forward to a point where he could reach the hard shoulder to the nearside of the sliproad.  It is clear that Peter Hughes realised that he was facing an emergency.  
27.	Even if, which I have been unable to find, he could have reached the hard shoulder before it came to an end at the chevrons, I certainly cannot find that acting as he did was not reasonable in the dangerous circumstance which he found himself.  Once he had reached the point at which the gradient turned against him, plainly he could not have gone further without engine power.  So he could not have reached the hard shoulder on the nearside of the sliproad to which, as I find, he was aiming to go.  
Ought the claimant to have evacuated the car?
28.	It is the defendant’s case that the Fiat was stopped at the point of the collision for minutes as opposed to seconds.  Accordingly, it is submitted that there was sufficient time to evacuate the vehicle.  There are two points advanced.  First, whether the reasonable course to take would have been to evacuate the vehicle, assuming there was time to do so, and second whether there was time to do so.  
29.	Leaving a vehicle takes very little time.  Asked about this, Mrs Hughes gave the evidence recounted above at para 2.  She herself was, of course, sitting to the nearside. She would have had to cross just the slip road, or to walk back between the slip road and the left lane of the motorway.  Peter Hughes was sitting in the driving seat. It was not suggested, and the Highway Code does not suggest that he should have opened the car door in the direction of the middle lane, to have got out and passed behind or in front of the Fiat and then crossed the slip road, or walked back to the chevrons.  He is a young man in his early twenties, but his mother is not.  It could hardly be expected that they would not remain together. So the only choice for him was to wait for his mother to leave the car, and follow through the passenger door.  
30.	Mr Weitzman submits that if they had evacuated the car and attempted to reach the hard shoulder on the nearside of the slip road, then there would have very likely been a fatal accident in which the driver of the car on the sliproad which killed them would have raised a defence of contributory negligence on the basis that they should have stayed in the car.  At least in the car they had the protection of the bodywork, which as events proved, did save their lives.  If they had been struck while outside the vehicle, they could not have been expected to survive.  If they had attempted to escape along the broken white line leading to the chevrons and then up into the space to the east of the chevrons, that would not have involved the risk of crossing the sliproad.  But it would have involved the risk of Mrs Hughes opening the passenger door onto the slip road, upon which cars were travelling at or near the speed limit with a view to joining the left hand lane of the motorway.  If they had been going to do that they would have needed to check very carefully whether there was a gap in the traffic to enable them to do so.  Again the evidence is that the motorway was busy and I cannot infer that there would have been a necessary gap in the traffic on the slip road before the collision occurred.  I conclude that staying in the vehicle as the claimant did was not unreasonable or negligent, whether on the part of Mrs Hughes, or of Peter Hughes. It is, of course, only the actions of Peter Hughes that are in question.
31.	That is enough to dispose of the whole of the defence of contributory negligence.  Nevertheless, the case was made for the defendant that the time the vehicle was stopped was minutes not seconds.  In my view that would not make any difference.  But I do not accept that it was stopped for minutes.
32.	Two bases are put forward for this submission.  First it is said that the actions described by Mrs Hughes, namely Peter Hughes attempting to start the engine with the ignition key, and her reaching for documents and the telephone to make a call, would have taken minutes rather than seconds.  I do not agree.  In my judgement what she describes could have taken place in far less than thirty seconds. 
33.	The second basis for this submission is the timing of the calls recorded by the police call centres.  Since the timings are two minutes apart and since the call by Margaret Phillips recorded that the collision had already occurred, it is submitted that there is evidence that the two minute gap between the times recorded on the logs is evidence of a two minute period between the Fiat coming to a halt and the collision.  I cannot accept this submission.  The timings on the logs are approximate.  The timings do not include seconds.  The evidence of DS Brooksbank makes clear that the timings are not sufficiently accurate to draw the conclusions sought.  He is stationed at the Force Call Centre Communications Division at Wakefield.  He was not himself involved in this matter, but was able to explain how the call centres work.  He said that it is important to note that the timing of the calls on the incident log does not necessarily reflect accurately a time that the call was made or received.  It is merely indicative.  One reason, he explained, was that there are two different methods by which the operator can enter the data. By one of these the timing will be entered before the data recorded and in the other it will be after.  The timing may also depend on whether the caller has had to wait before the operator answers the call. Margaret Phillips did not recall having to wait before her call was answered, but DS Brooksbank thought it likely that the call would not have been taken in the centre which it was taken unless it had been transferred there after the caller had had to wait more than a minute.
34.	It follows that no question of apportionment arises in this case, nevertheless, I shall express the views I have formed on this point, should it be necessary for a matter to be considered further.  
Apportionment
35.	As already noted, the 1945 Act requires that, if there has been contributory negligence, the damages recoverable should be reduced to such an extent as the court thinks just and equitable having regard to the claimants share in the responsibility for the damage.  The defendants contend that the apportionment should be 25% to the claimant and 75% to the defendant.  It is accepted that the acts or omissions of Mr Turney were both more causally potent and more blameworthy than those of the claimant.  The issue here turned on the question whether Mr Turney’s driving was so bad that there should be no apportionment for that reason.
36.	It was suggested to Mr Turney in cross-examination that when moving as he did from the centre lane into the nearside lane his purpose was to overtake a slow moving van which had been immediately ahead of him in the centre lane.  Mr Durkin described that van as obstructing the view and causing him some annoyance.  He described Mr Turney looking in both his rear view mirrors.  Mr Turney denied any such intention.  
37.	I do not find that that was his intention.  His intention in moving into the nearside lane may well have been to get away from the vehicle in front of him. But I do not find that it was to overtake using the nearside lane to do so.  Mr Turney’s carelessness consisted in not slowing down sufficiently to create the space between himself and the vehicle immediately in front of him in the centre lane, which in turn would have given him a view into the nearside lane so that he could see that it was safe to carry out his manoeuvre.  He was sufficiently careful to check in his nearside rear view mirror to see that his manoeuvre would not obstruct a vehicle which was to his rear in the left hand lane.
38.	This is a bad case of careless driving and the consequences have been catastrophic for Peter Hughes and his family.  But it is a collision that could well have occurred as a result of carelessness of a much lower order than that of Mr Turney.  It is true that a number of cars successfully manoeuvred around the Fiat, including Mrs Robins and Katy Phillips.  But the collision might well have occurred if a driver in a car had been distracted, which can occur on occasions in circumstance which, though careless, are not highly blameworthy.  The danger that the Fiat presented was a danger to all other road users. It was a danger not only to those who were driving recklessly (if there were such) but also to those who were driving too fast or not keeping a proper look out.  Those two categories of drivers are referred to by Cairns J in Rouse in the passage I have already referred to.  They may be terms which reflected the different driving offences current at the time that judgement was delivered.  Recklessness is no longer used to define a motoring offence.  The modern offence is dangerous driving.  The present case is not one in which it would be appropriate to explore what is meant by that term in Rouse and how it applies today.
39.	If I had concluded that the claimant had acted negligently, I would in any event would have regarded his negligence as very low on the scale and apportioned the damages at no more than 10% to 90%.
40.	In summary I find that the claimant was not negligent and that no question of apportionment arises.