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||Neutral Citation Number:  EWHC 1871 (QB)
||Case No: HQ17PO1456
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||18 July 2018
B e f o r e :
SIR ROBERT FRANCIS QC
SITTING AS A HIGH COURT JUDGE
- and –
(1) FRANCES WILLIAMS
(2) AVIVA INSURANCE LIMITED
|| ANDREW LAWS
||- and –
||(1) FRANCES WILLIAMS
(2) AVIVA INSURANCE LIMITED
Charles Woodhouse, instructed by Irwin Mitchell LLP, for the Claimant
Michael Pooles QC, instructed by DWF LLP, for the Defendant
Hearing dates: 16, 17 July 2018
HTML VERSION OF JUDGMENT APPROVED
Crown Copyright ©
Sir Robert Francis QC:
- This is a claim for damages for personal injury arising out of a collision between an Audi A3 car driven by Ms Williams, the first defendant, and a Yamaha 850 motor cycle driven by Mr Laws, the claimant. The accident occurred on 23 October 2014 at 15.45 on the southbound side of the A12 road at the slip road forming the entrance to the A12 from the B1389 junction 22 close to Coleman's Bridge in or near Witham, Essex.
- Master Eastman ordered the issues of negligence and contributory negligence to be tried as a preliminary issue and this is my judgment following on from the trial of those issues at a hearing on 16 and 17 July 2018. In order to ensure the parties are aware of my decision as soon as possible I am handing down this judgment in draft as if an ex tempore judgment and ask the parties to submit any suggested typographical amendments to me within 4 days after which I will issue an approved version.
- The second defendant, Aviva plc, are defendants in their capacity as insurers of the first defendant. For the sake of transparency at the outset of the proceedings I made the parties aware that I had very recently received hospitality from a senior board member of Aviva but, needless to say neither of us were aware of this case, or took part in any discussion about it. Neither party objected to my hearing the case.
- The claimant is represented by Mr Woodhouse instructed by Irwin Mitchell LLP and the defendants are represented by Mr Michael Pooles QC, instructed by DWF LLP. I received written and oral evidence from the claimant and the defendant and in addition two witnesses to the accident, Mr McCormick another motorcyclist and Mr Borg who was driving a lorry which became involved in the collision. I also heard from the police officer who investigated the accident, PC Ward, and experts in accident reconstruction, Mr Hague instructed by the claimant, and Dr Leek instructed by the defendant.
Overview of the accident
- There is a great deal of common ground about the circumstances of the accident and therefore I will summarise the layout of the road and what occurred.
The slip road
- A detailed plan and a large number of photographs agreed between the experts show the road layout and the relevant dimensions and distances. In summary the accident occurred on a slip road by which traffic on the Colchester Road (B1389) joins the A12 at junction 22. Both the A12 and its slip road are designated as clearways, and there are lines dividing the slip road from the main carriageway described by Mr Hague in his reports as "give way markings". From traffic lights on the Colchester Road, traffic joining the A12 southbound carriageway crosses Coleman bridge over the dual carriageway and continues on a two-way road curving to the left, seen from the driver's point of view. The opposite lane receives traffic exiting from the southbound carriageway of the A12 at junction 22. At a point where this lane joins the lane used by traffic entering the A12 the latter loops in a form of a "U" bend and descends down to the entry lane on to the dual carriageway. For some two thirds of the way round this bend the view of the main road is obscured by trees and shrubs. At the point where the entry lane itself emerges onto the dual carriageway it is about 3.6 metres wide, if measured from the nearside white line denoting the hard shoulder to the centre of the white line denoting the start of the inside lane of the dual carriageway. Dr Leek stated that the average car is about 1.75 metres wide or 2 metres including the door mirrors. That would leave 1.6 metres clearance in which to avoid encroachment on the main carriageway. From that point [described by the experts as the "zero data point"] the slip lane tapers to a point 203 metres away, well beyond the bridge over the road, but the section useable by the average car without encroaching on the near side lane of the dual carriageway is 130 metres from the zero data point. At the point at which the slip road goes under Coleman Bridge the slip road has narrowed to 2.3 to 2.9 metres. Dr Leek told me that some drivers might be reluctant to go as far as that if trying not to encroach on the main road.
- I had the advantage seeing a video taken by Dr Leek showing a driver's view of the road going along the southbound carriageway towards and past the slip road at a steady speed of 57 mph. The video also shows the view for drivers travelling in the same direction as that taken by Mr Laws and Ms Williams, down the slip road to where it meets the dual carriageway. I saw the video twice, the second time with a speedometer superimposed on it to show the speed of the car. This showed that the car travelled round the bend of the slip road at a variable speed in the mid 20s, but, as Mr Pooles QC observed, not reaching 50 mph by the time the car merged with the A12. I estimated that the time taken for the car to travel from the point where the entry lane became straight to the point where it merged into the nearside lane was about 4 seconds. I formed the impression that from a car driver's point of view the slip road seemed to be quite narrow with little room for error if one was not to encroach on the main road. Further, what may seem on a plan to be a long run-in to the main road is passed relatively quickly even when travelling at a speed slower to the traffic already on the main road.
- The claimant was on his Yamaha 850 motorcycle heading towards the southbound carriageway of the A12 on the slip road I have described. Ahead of him was an Audi A3 driven by Ms Williams who was also intending to join the A12. In front of her was another car which successfully entered the main carriageway. At the same time a lorry driven by Mr Borg was approaching along the nearside lane of the A12. There may have been a car some way ahead of the lorry. It is common ground that the defendant came to a halt on the slip road before entering the main road. She did so because she did not think it was safe to proceed because of oncoming traffic, and in particular Mr Borg's lorry. The claimant had turned to see if it was safe for him to enter the main road. Unlike Ms Williams, he judged that it was safe and assumed that she would proceed on to the A12 ahead of him. He began to accelerate to bring his speed up to that of the traffic on the main road and then turned back to look towards the front. He then noticed for the first time that the car ahead of him, the defendant's car, had stopped. He braked, but was unable to avoid hitting the rear offside corner of the car, probably with his leg and was propelled into the side of Mr Borg's lorry. He appears to have been carried along the road by the lorry before he became disentangled from it. He sustained serious injuries including fractures to his left leg, right ankle, and a partial severance of his right hand. He was in hospital for over 2 months, and has had multiple operations.
The pleaded allegations
- The allegations pleaded against the defendant are that:
- She failed to keep a proper lookout
- Failed to heed the road markings requiring her not to stop when it was unsafe to do so
- Failed to heed the presence of the Claimant's vehicle coming up behind her
- Failed to take adequate care of the Claimant's safety
The pleaded defence is that at the time traffic on the A12 was heavy and that it would not have been safe for the defendant to enter the nearside lane, as a result of which she was obliged to slow to a stop at the end of the slip road. She agrees that the claimant drove into her car after she had stopped. She pleads that she was obliged to come to stop by the Highway Code, and that she could not join the main road when there was no safe gap in the traffic. She goes on to plead that the accident was caused wholly or contributed to by C's own negligence in
- Exposed C to a foreseeable risk of injury
- Failing to keep a proper lookout,
- Heed the presence of C's car,
- Failed to make due allowance for the heavy traffic
- Attempted to join the main road when unsafe to do so.
The issues I have to decide are
- Whether the defendant was negligent in slowing or stopping her car on the slip road
It is important to note that I must undertake the task of deciding the issues in that order. The issue of any negligence on the part of the claimant only arises if I find that the defendant has been negligent, and then it arises in the context of my deciding whether if at all the claimant's damages should 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.
- If, so whether and to what extent the claimant contributed to the accident.
The standard of care
Mr Pooles QC for the defendant contended that the case in effect concerned a judgement made by Ms Williams as to the state of the traffic and that she should not be found to have been negligent if her judgement was reasonable, even if a different judgement would have been made by some other motorists. Mr Woodhouse for the claimant disagreed, certainly to the extent that Mr Pooles's submission implied the application of the Bolam test. He contended that the standard to be applied was that of the reasonably competent driver. He suggested that the standard to be applied to drivers was a high one because of the risk of significant damage arising from driving mistakes. Thus, drivers were generally held liable to pedestrians even where they ran out in front of them, and the same standards were to be expected of learner drivers as for qualified ones. Finally, he contended a driver may be liable to the driver behind him where the former brakes suddenly and unnecessarily: Ali v D'Brass  EWCA Civ 1594; Elizabeth v MIB  RTR 405.
In my judgment Mr Woodhouse's submission formulates the standard to be applied more correctly than that of Mr Pooles. There is no place for the "two schools of thought" approach of the Bolam test and the question I have to answer is whether or not Ms Williams was driving as would a reasonably competent driver. The competent driver takes account of the possible actions of other road users, even if those may be mistaken or foolish. However, the standard of care, though high as Mr Woodhouse rightly says, cannot be applied in a way which requires the driver to endanger one road user in order to avoid risk to another. Nor does it require perfection. The reasonably competent driver is entitled to apply a reasonable margin of safety in driving decisions. Indeed, the very fact that a high standard is required means that the competent driver takes account of the risks of his/her actions to all road users.
Relevant guidance for motorists
Reference has been made to two forms of guidance, the Highway Code and the then Driving Standards Agency guidance for drivers and motorcycle riders. I am required to have regard to the provisions of the Highway Code, and it is common ground that although the DSA guidance does not have statutory effect I should take it into account as reflecting good driving practice. Drivers are in fact encouraged by the Highway Code to refer to it. Neither form of guidance can or is intended to cover every situation which may face a motorist.
The Highway Code
The code explains the significance of a clearway. Rule 240 states that
You MUST NOT stop or park on… a clearway
The code contains no explicit guidance to assist car drivers in relation to joining a non-motorway dual carriageway off a slip road, but paragraph 259 includes the following relevant advice in relation to joining a motorway:
- Give priority to traffic already on the motorway
- Check the traffic on the motorway and match your speed to fit safely into the traffic flow in the left-hand lane
I have not been referred to any specific legislation which may define the meaning or extent of a clearway restriction on this or any other road, but it is accepted by both parties that the prohibition on stopping cannot be intended to be absolute. I take that to mean that if the driver makes a reasonable judgment in all the circumstances that it is not safe to move into the left-hand lane to the extent that to do so will cause traffic to alter speed or course he or she should not do so. It follows that if in such circumstances the driver is approaching the end of the useable part of the slip road he or she must either slow down or if necessary stop. It has not been suggested that the requirements of a clearway require any different reaction where it is reasonably adjudged not to be safe to enter the main carriageway. In my judgment there are no material differences between joining a non-motorway dual carriageway and a motorway and therefore this is sensible advice for both types of road.
- Not cross solid white lines that separate lanes or use the hard shoulder
Driving Standards Agency Guide to Driving
At page 117 of the 2010/11 edition of this guide the following relevant advice is given about junctions on dual carriageways:
Some dual carriageways are very similar to motorways, with slip roads to join and leave. …
…. If there is a slip road emerge as you would to join a motorway (see section 11)
- Adjust your speed to traffic on the main carriageway
- Look for a gap in the traffic and move into the left-hand lane
- A quick sideways glance might be necessary to check the position of other vehicles (but see page 66)
- Stay in the left-hand lane until you get used to the speed of the traffic in other lanes
The section in the guide at page 227 on joining a motorway states:
- Don't emerge unless you are sure you won't cause traffic to alter speed or course
At an entry point where a slip road leads to the motorway adjust your speed to that of the traffic already on the motorway before joining it. Give priority to traffic already on the motorway.
Join where there's a suitable gap in the left-hand lane. Use the MSM/PSL routine.
A quick sideways glance might be necessary to verify the position of other vehicles. Try to avoid stopping at the end of the slip road unless queuing to join other slow moving traffic. [Emphasis supplied]
Among a list of "dos" is the following:
Assess the speed of the traffic on the motorway before you try to join.
The "don'ts" are
- Force your way into the traffic stream
Again it is clear from this advice that there is no absolute prohibition on stopping on a slip road: indeed it is recognised that there are circumstances in which it is necessary for safety to do so. The reference to queuing is, as Mr Woodhouse accepted, but an example of circumstances in which stopping might be required, although it is clear that drivers should try to avoid doing so. it is equally clear that, as is so often the case, drivers have to make judgements about what it is safe to do, the overriding principle being that an action should not be taken unless it is safe to take it.
- Drive along the hard shoulder
Advice is also given on observing traffic behind the driver:
You should always know as much as you can about the traffic behind you…
Using your mirrors regularly and sensibly enables you to keep up to date with what's happening behind without losing touch with what's going on in front….
When should you use your mirrors? Before you signal or make any manoeuvre. For example before…. Slowing or stopping…
Driving Standards Agency Guide to Riding
The Agency's 2010/11 edition of the guide for riding contains separate and relevant advice for motor cyclists. In a section on rear observation this is said:
Looking behind is important because not all motorcycles are fitted with mirrors and mirrors don't always give a clear view behind, leaving significant blind spots. There will be times when you need to look around to see the full picture…
When to look behind
Use judgement in deciding when to look behind, Obviously when you are looking behind you are not looking ahead. This could be hazardous if, for example, you're close to the vehicle in front or if you're overtaking at speed. Equally there are situations when it is dangerous not to look behind,…
Take rear observation when you're about to change position or speed this might be before… changing lanes
Warning: looking over your shoulder too often or at the wrong moment can be hazardous. In the time you take to look behind, you
- Lose touch with what is going on in front…
At high speed or in congested traffic your attention needs to be focused ahead. In these situations, time your rearward checks carefully.
Combine regular and sensible use of the mirrors with the "lifesaver" check into the blind area before altering course.
The "lifesaver" check is described as
A last check over the shoulder into the blind spot to make sure nothing unexpected is happening before committing yourself to a manoeuvre
The advice for joining a dual carriageway if there is an acceleration lane is much the same as for drivers:
- Emerge as you would to join a motorway…
- Use the acceleration lane to increase speed. Match your speed with that of traffic in the left-hand lane
- Move into a safe gap in the traffic
The section on joining a motorway includes the following:
- Remember to use a lifesaver glance just before you move into the left lane.
join where there's a suitable gap in the left-hand lane
Use OSM/PSL routine, A 'lifesaver' glance will verify the position of other vehicles. Try to avoid stopping at the end of the slip road unless queuing to join other slow-moving traffic
Taken as a whole, the advice for motor cyclists is that they should be vigilant to know what is behind them, and to ensure they have checked their blind spots by periodic looks or glances behind them. However, such actions should not be for so long that they cease to be aware of what is happening in front of them. The advice with regard to lifesaver glances is not intended to excuse motorcyclists from ensuring they keep a safe distance behind any vehicle in front of them or cease to be aware of the speed and directions of such vehicles.
The claimant was an experienced rider having ridden motorcycles from an early age. He had given this up when a teenager as he could not afford it and only passed his test 3-4 years before the accident. He told me he had three motorcycles, a Honda CBR Blackbird 1100 and a Yamaha TDM 850, which he described as his "commuter bike". He also had a trials motorcycle, but on this occasion was riding the "commuter bike". When cross-examined by Mr Pooles QC, he was reluctant to agree it was a "powerful "motor cycle, but agreed that it could accelerate faster than a car. He was wearing full protective clothing and a helmet. He had recently attended an advanced motorcycling course
At the time of the accident he was on his way home from work. The claimant has three routes for going home – the route taken on the day of the accident was the longest, but the weather was good and he thought he would enjoy the ride home. In his witness statement he said that the A12 is a road
"where you can get up to a decent speed of 60 to 70 mph with a few bends. It… uses decent well-maintained B roads that are enjoyable for motorcycling."
He stated that as he came into the slip road he was travelling at about 35 mph when he saw the Audi ahead of him: it appeared it was being driven normally. He went on:
I didn't pay any particular attention to the car as it was being driven normally. It was travelling at a normal speed to join the traffic and there was nothing to suggest it was being driven by a nervous driver"
According to his statement he leaned into the corner in a neutral throttle, neither accelerating nor decelerating. He "lifted the bike" as he came out of the apex of the bend where he had a good view of the traffic approaching on the A12, which he described as being "moderate". He accepted traffic could vary a lot on that road. He saw there was a car approaching the junction in the nearside lane followed by a flat-bed truck. He thought there was plenty of room between them say 12-14 lengths or maybe more, at any rate a gap in which it was appropriate for him to join the traffic. At that point the car had not reached the Audi which was about 120 feet further up the slip road from where he was, and the truck had not reached his position. He judged that both the Audi and he could get on to the main road in the gap between the car and the lorry.
He took two what he described as "life saver" looks over his shoulder. On the first of these the lorry was behind him and he was not quite matching its speed; his second would have taken
"no more than a couple of seconds. I saw the lorry had moved up but there was still sufficient space for us to merge. I started to pick up speed so that I could move into the space in front of the lorry which was fairly easy to do on a motor bike."
It was then that he looked forwards again.
"I looked forwards again and saw that the Audi had braked and had virtually stopped in the slip road ahead of me. This was completely unexpected. The second I saw it I shut the throttle down and applied hard braking..."
Mr Laws gave an earlier statement to the police on 2 November 2011 in which he described the lead up to the collision thus:
I had come round the left hand bend which is the slip for the A12 and checked my blind spot to the right to check the traffic. I then looked forward again and checked the car in front of me (An Audi A3). It was accelerating and I felt it found a gap to join and was committed to it. I rechecked my blind spot and seen a yellow truck in [lane] 1 but I could see a space ahead of the truck to join. I began throttling up to increase speed to match the speed of the traffic to join. I then began turning my head to look ahead and the Audi ahead of me was completely decelerated to stop or almost stop. I was so close to the car that I was close enough to see the rear windscreen heater matrix. I don't remember seeing brake lights."
He then braked hard but the front near side of his fuel tank struck the rear offside of the car. He then heard the approach of the lorry and realised it was going to hit him.
When cross examined Mr Laws told me he had been stationary at the traffic lights. As he left them he could not see the defendant who must have been on a separate part of the road if, which she had, she had also come through the lights. He had first seen her when he was on the apex of the bend in the slip road, around 12 o'clock looking at the photograph. He indicated that the defendant at that time was roughly where a car can be seen in the photograph quite close to the widest point in the slip road. He agreed that if the defendant had started from the traffic lights as well, and unless she had been braking by then, he must have been going faster than her. I think that is an inevitable conclusion given the distances involved. In re-examination he agreed he had accelerated along the straight section of the slip road, having been doing about 35 mph as he went round the apex of the bend. He was not travelling as fast as 60 mph.
He agreed that his motorcycle was capable of faster acceleration than a car. He also agreed that while taking a "life saver look" he would lose touch with what was going on in front of him. He agreed that at 60 mph a glance lasting 1 or 2 seconds would mean that he had travelled a further 50 metres up the slip road. He thought that when he first saw the defendant's car it was 120-130 feet ahead of him, a distance of some 40 metres. In re-examination he told me that when he entered the straight section of the slip road the defendant's car was about half way between there and the bridge. He could not see anything which was preventing the defendant entering the near side lane. The two life saver looks he thought would have lasted some 5 seconds in total. The distance travelled at 60 mph in that time would have been 150 metres.
He explained the procedure he adopted in this way. As you take up the manoeuvre you move the bike closer to the dotted line; and are positioning the bike to get into the near side lane as you look over your shoulder, "it all has to flow". It was put to him that to get in front of the lorry he would have had to accelerate and this would have been wrong as one should not overtake on the nearside of a vehicle. He disagreed: he thought that more of a hindrance could be caused by trying to get behind such a vehicle than accelerating to get in front. However, he agreed that one disadvantage would be that one could not see what was on the off side of the vehicle one was passing.
Mr McCormick is an experienced motor cyclist having ridden motorcycles for 16 years. At the time of the accident he was riding a Kawasaki 1100 model and was returning home from work. His route took him over Coleman's Bridge in the same direction as the claimant and the defendant. He was waiting at the traffic lights when a motorcycle he now knows was being ridden by the claimant drew up alongside him. When the lights changed to green the claimant went off ahead of him and drew away. Mr McCormick explained the difference in speed by the fact that his bike had not warmed up at that point. He states that he saw the claimant reach the beginning of the straight part of the slip road and look behind him at the oncoming traffic, which he estimated to be travelling at 50 to 60 mph rather than the normal 70 mph. he described the traffic as being "reasonably heavy". In his written statement he stated that he had thought the claimant had time to enter the carriageway in front of a car which was in front of the lorry that we now know was being driven by Mr Borg. Mr McCormick's assessment was that if the claimant had done that he would have been able to enter the carriageway behind the car and in front of the lorry. In any event he thought there was enough room for both bikes to enter the main road in front of the lorry. His statement continued:
When I looked forwards again and down the slip road I saw there was a dark coloured Audi motorcar stationary at the end of the slip road; there were no lights displayed on the car and it appeared to be parked. This was completely unexpected and took me by surprise. I saw that Mr Laws was close to the car and was braking as I saw his brake lights were on. He appeared to be steering to his right towards the A13 trying to avoid the Audi, he had lost speed and was not travelling fast enough to join the main carriageway".
When cross-examined Mr McCormick agreed he had not answered the requests of the defendant's solicitor to give a statement in spite of multiple requests. His explanation was that he had been going through a divorce and had not opened his post for years. He suggested that DWF do not have their "emblem" on their envelopes and did not know they had been trying to contact him until he received a telephone call. He denied he had declined their request.
He agreed that traffic tended to bottleneck at this junction and to slow down. He thought the traffic was "closer to 50" at the time. He had only seen the claimant look over his shoulder once and was leaving the corner of the slip road at the time. While he, Mr McCormick, had plenty of time to stop as he was three car lengths behind the claimant, whom he called Andrew, the claimant was only two to three car lengths away from the Audi, which was stationary when he first saw it.
Ms Williams is an experienced driver and before her present employment had worked as a company car driver for about 25 years. She was familiar with this junction as it was a regular route home.
Ms Williams is recorded as having given a short statement to the police at the scene. In it she stated that
No one would give way. I slowed right down to nearly stop and I saw the bike come towards me in my rear view mirror. Next thing I knew he had hit me…
Later on, she drew a sketch plan for her insurers; this appears to show her car on the slip road and a number of vehicles almost nose to tail on the A12, including the lorry which is shown as being more or less alongside her car. In her witness statement for the court she described the traffic on the A12 as she was reaching the end of the slip road as "extremely busy and no one was going to let me merge into the nearside lane.." For that reason she slowed down almost to a halt. She repeated that this was when she saw the defendant's motorcycle in her rear view mirror.
In cross examination she said she had first become aware of the defendant as she went round the bend in the slip road, at about 10 or 11 o'clock looking at the aerial photograph, she could see him catching up but was not worried about him. She had started to look for a gap in the traffic as soon as she got a clear view. When she was coming round the bend she could see Mr Borg's lorry to her right. As she joined the straight part of the slip road she could see the lorry but it was not a considerable distance behind her, she denied that if she had accelerated she could have got out in front of it. In her opinion it had not been safe to join the A12 which was why she had slowed down. There had been one car ahead of her on the slip road which had joined the A12 without a problem. She had checked in the mirror before braking. She had seen him before the point described in the police statement. She agreed it was unusual to have to stop on a slip road. She also agreed that as she knew she was going to have to slow down or stop she should "possibly" have put her hazard lights on.
Mr Borg is an experienced lorry driver with at least 20 years of experience, and a good driving record. At the time he was returning to his employer's depot In Rainham. He was very familiar with the A12 in general and this junction in particular.
Mr Borg gave a statement to the police on 23 October 2014. He stated he was driving his lorry on cruise control at 55 mph in the inside lane. As he approached the junction he "touched" his brakes to slow to 50 mph,
"As I saw a black car on the slip road indicating right to join the lane I was in. She then touched her brakes as the brake lights came on… I was now in the inside lane about 4 to 5 car lengths from the black car. I then saw a motorcycle come round the bend of the slip road I would say at a normal speed for the road… I then heard the motorcycle accelerate; at this point I had not braked, changed my speed or moved lanes as I was unable to move to the outside lane due to traffic. I then heard a loud thump, looked in my near side mirror and saw a motorcycle and 1 person jammed in the nearside of my vehicle."
In his witness statement given to the defendant's solicitors he described the traffic as being "busy". In an earlier statement for the claimant's solicitors he had said that as he approached the junction there was a "good sized gap" ahead and no traffic immediately in front of me" but traffic in the outside lane was "quite heavy".
His description of the accident in the earlier of these statements was as follows:
I saw two cars in the slip road and it was obvious that there were intending to join the A12. The first car accelerated away and joined the nearside lane well ahead of me. The second car was a black coloured Audi and it was moving more slowly…it was adjacent to the main carriageway and about 8 to 10 car lengths along the slip road from the point where it drops down to join the main road. The right indicator was flashing. I touched my brakes and slowed to around 50 mph but I couldn't move over to the off-side lane due to other traffic. I saw the brake lights of the Audi come on momentarily. It then stated to accelerate… if the driver had continued to accelerate they probably could have pulled out ahead of me but I may have needed to brake quite hard.. As I passed the bend of the slip road just before it draws alongside the main carriageway I was aware of a motorbike coming round the bend…. I heard the pitch of the engine change and it sounded like it was accelerating. By now the bike was behind me… The Audi reached a reasonable speed… it had gone quite a long way down the slip road but then braked again and slowed right down. As I drew level with it I felt a thud and a jolt…
Later in the statement he observed that
If the Audi had not stopped on the slip road the motorcyclist could have easily accelerated past me in the slip road and merged into the nearside lane ahead of me.
In the later statement Mr Borg gave a consistent account except that he made no mention of the Audi accelerating before decelerating. However he added this:
If the First Defendant had pulled out of the slip road my only option would have been to either swerve into the offside lane or to brake hard and stop in the lane I was in. Either way, due to the busy traffic on the road I believe that in doing either of these actions I would have caused a serious accident…
When cross-examined he agreed he had turned off the cruise control and reduced his speed to 50mph because he assumed the Audi would merge in front of him. If she had done so, however, he would have had to touch his brakes to miss her safely, as he was travelling quite quickly. He did not think the collision had occurred while he was alongside the Audi.
PC Ward was the officer in the case and produced his police report and the statements to which I have already referred. He was the subject of some criticism from Mr Woodhouse who described his witness statement as being unbalanced. I suspect this is unfair because, as he himself said he was answering solicitor's questions. However insofar as he expresses an opinion about the driving in his statement I have disregarded it, not because of the criticism but because it is entirely dependent on an assessment of the evidence, of which I have heard a great deal more than he had access to.
I will not attempt to set out or summarise the complex expert evidence offered to the court. Mr Pooles did not seek to rely on it, agreeing that this case turned on my assessment of the factual evidence. Mr Woodhouse accepted it was of limited assistance as the calculations which were central to it depended on so many variables which in turn were dependent on the factual evidence. However he did ask me to have regard to the table at paragraph 5.11 of the joint report, from which he argues that I can conclude that making as many assumptions as possible in favour of the defendant the calculations are supportive of the claimant's case in that the lorry must have been at least 50 metres behind the car when it started to brake, a distance, he argues, which was more than ample for the defendant to have entered the near side lane in safety. I am not sure this is correct. The lorry would have taken 2 seconds to travel 50 metres at 50 mph. This does not strike me as fitting the description of ample time. In any event I consider it quite unsafe to base my decision on trying to identify from the evidence a conclusion on factors which can then be applied to this table. It would be an exercise in seeking an artificial degree of certainty into what is of necessity an imprecise assessment in which I am required to find facts on the balance of probability.
Discussion of the evidence of fact
I accept that all witnesses of fact were doing their honest best to give me their true recollection of what had happened. Inevitably however, memories and impressions are likely to be affected by the passage of time, the turning over of memories on numerous occasions, and the perspective of the witnesses. In particular the principal protagonists, the claimant and the defendant, as experienced drivers will naturally be reluctant to accept that they made mistakes. If indeed they did.
Mr Woodhouse and Mr Pooles urged me to accept the evidence as given by the witnesses they called respectively. After careful consideration I have concluded that the most impressive witness was Mr Borg. He was clearly an experienced and conscientious lorry driver who was familiar with this road and the traffic conditions. Above all he had no axe to grind. His recollection was precise, but not overmuch so, and his judgment of safe driving conditions was demonstrated by the way in which, as I accept he did, he switched off his cruise control to reduce speed in anticipation of what might happen with merging traffic from the slip road. Given his anticipatory action in this regard he might have been expected to offer the opinion that the defendant could have entered the main road in safety ahead of him, but he consistently declined to do so. Instead he persisted in the view that had she merged in front of him he would have had to brake or change lanes. He was clear in his evidence that the defendant's motorcycle was behind his lorry when he heard the "thump". This could not have been literally true as the defendant was deflected off the Audi into the side the lorry. Nonetheless on his account the claimant was sufficiently to the rear of the driver's cab that he would have had to "undertake" the lorry to merge into the road in front of it. The fact that Mr Borg thought the claimant could have achieved this manoeuvre if not obstructed by the Audi does not support the proposition that the same would have applied to the Audi, a vehicle with slower acceleration and a greater width.
I also found the defendant to be an impressive witness. She came over in her oral evidence as being careful in her answers and ready to make concessions even where these were not in her favour. For example she accepted she should possibly have put her hazard lights on. I should say straightaway that I consider it unrealistic to have expected her to do this. The situation she was faced with, regardless of whether she was right to slow down or not, was not comparable to a car parking up on the hard shoulder or in a traffic lane, or in approaching the back end of a traffic jam on a motorway. This was a momentary situation which it was hoped would resolve itself swiftly. However she did not have the advantage Mr Borg had of seeing the incident unfold in front of him.
I was less impressed with Mr McCormick. While he was independent in the sense that he had no prior acquaintance with the claimant, he was clearly keen to support him. For instance I could not help noticing that he called him by his first name, and they clearly shared a serious interest in motorcycles, and powerful ones at that. A degree of partisanship was also indicated by his apparent reluctance to engage with the defendant's solicitors. I found his explanations for not replying to solicitors' letters less than convincing. Having said that I do not consider he was in any way deliberately seeking to give misleading evidence. Whether his judgment of the situation that unfolded was balanced is another matter. In any event it is not at all clear that he saw the defendant's car before it became stationary or near stationary. If he did not do so, he was not in a good position to judge whether or not she could have safely pulled out into the main road.
Finally the claimant is obviously a man who attracts considerable sympathy because of the injuries he suffered. However, while he gave an account which suggested, as his counsel accepted, in his closing submissions indicated a failure to look where he was going before he started his final acceleration. I did not detect much acceptance in his own evidence that this was indeed an error on his part. Where his evidence is inconsistent with that of Mr Borg I prefer the latter's.
It is submitted on behalf of the claimant that Ms Williams should not have stopped or slowed to a virtual stop for a number of reasons:
- It was unnecessary to do so – she could have entered the A12 in front of Mr Borg's lorry safely [and indeed it is suggested that the claimant could have done so behind her as well]
- She should not have stopped on what was a clearway [when it was safe to proceed]
Mr Woodhouse referred me to Ali v D'Brass as indicating that sudden and unjustifiable braking was a breach of duty for which a driver could be liable to a motorist who then failed to avoid colliding with the rear of his or her vehicle. In the circumstances of this case the defendant caused a hazard in the slip road by stopping. It was negligent not to put on her hazard lights. All drivers have to take into account multiple factors in every driving decision they make and that is not a defence to the making of a negligent decision. While there was a vehicle in front of the lorry it had passed beyond the defendant and therefore was immaterial to her decision. Mr Borg had agreed that if the defendant had accelerated in the normal manner she could have got out in front of him if she had done so before she braked.
- The evidence of the claimant and Mr McCormick shows that it was safe for her to have proceeded on to the A12.
For the defendant it was submitted that this case concerns a judgement that had to be made within 4 seconds at a junction with a busy road. That it was busy is corroborated by the fact that traffic had slowed to about 50mph from the maximum permitted of 70 mph. The evidence did not show that the defendant accelerated or braked hard. Although Mr Borg had slowed down his speed as he approached the junction the defendant was not in a position to judge that but had to sum up whether it was safe to proceed in front of the lorry onto the main carriageway. She faced the further complication of another vehicle ahead of her on the slip road. Mr Pooles relied on the unwillingness of Mr Borg to concede that the defendant could have joined the main road safely. Had she done so she would have caused traffic to brake. She was not required by law to use maximum acceleration. On the other hand the claimant must have been accelerating to get past the lorry on which he must have been concentrating rather than the car in front of him.
I am satisfied that the traffic on the A12 was heavy. Little significance can be placed on Mr Borg's setting of his cruise control, as he said this was the maximum speed he was permitted to travel at, but he did observe that there was traffic on the outside lane, and I prefer the evidence of those witnesses who observed that the road was busy. Nonetheless the traffic was travelling at a generally steady speed. It is clear that Mr Borg was approaching the junction as the defendant came round the loop of the slip road and entered its straight section. He was sufficiently close to judge that it would be prudent for him to reduce his speed slightly by switching off the cruise control. However he only reduced his speed by 5 mph, a reduction the defendant could not reasonably have detected. There is no suggestion that Mr Borg made any signal such as flashing his lights to indicate he would give way to her. Whether it would have been safe for her to proceed into the near side lane obviously depended on a combination of a number of factors including the lorry's speed, its distance from and the speed of the defendant, along with other factors such as the potential risk of a vehicle in the off-side lane obscured by the lorry overtaking and turning into the nearside lane. I am satisfied that the lorry was travelling at 50 mph, while the defendant had in all probability entered the straight section of the slip road at a considerably slower speed. I accept that there was a car ahead of her which successfully merged with the main road. The presence of such a vehicle is likely reasonably to have inhibited any fast acceleration by the defendant, as potentially to a lesser extent would the vehicle ahead of the lorry in the nearside lane.
At the point of the collision the lorry must have been close to or alongside the defendant's car for the resulting impact with the claimant to have occurred. While this occurred after the defendant had braked, it was also after the claimant had accelerated, as I find he must have done, onto the straight section of the slip road and passed most of the nearside of the lorry. Mr Borg's evidence until the very end of his oral evidence was that the defendant could not have entered the main road without causing him to brake. My note is not as clear as Mr Woodhouse's may be that he accepted there was room for her before the defendant braked. If he said that I think the answers he had consistently given before then give a more coherent account. For example he had earlier made the point that when he first saw the defendant she was travelling very slowly and that even if she had accelerated he would have had to touch the brakes. That is not a statement consistent with the answer it is suggested he gave to my question. Mr Borg did not claim it was impossible for the defendant to have moved out, if she had accelerated hard enough. Mr Borg had said in one statement that the claimant could have accelerated past him if the Audi had not stopped. I find that this may well be the case, but is of little assistance in assessing the reasonableness of the defendant's actions. Firstly the motorcycle had the power to accelerate considerably more quickly than the defendant's Audi. Secondly it would have been able to use a much greater length of the tapering slip road than could a car, before merging with the near side lane. I accept Mr Borg's evidence as I have outlined it as being an accurate and unbiased description of what he saw. It provides powerful support for the defendant's judgment that it was unsafe for her to enter the nearside lane being correct.
The time available to the defendant to assess the state of the traffic and the nature of any gap in it, and then to adjust her speed to match the other traffic was short. She had to have regard to the car in front of her. In what must have amounted to little more than a split second she had to decide whether to accelerate into whatever gap there was, or to slow down to let the lorry pass. I am satisfied that had she chosen to accelerate into the gap, she would have caused Mr Borg to brake, and accordingly she would then have been responsible for an unsafe manoeuvre. Therefore she was right in her judgement that it was necessary to slow down or stop.
I reject the suggestion that she should have put on her hazard lights. Her brake lights would have come on and provided a reasonable warning to approaching traffic that she was slowing down. The fact that the claimant did not see this is entirely due to the fact that he was looking over his shoulder and then started to accelerate before looking ahead of him again. I see no reason why he would have been any more able to see hazard lights in time for him to react any differently.
I conclude that the actions of the defendant were those of the reasonably competent driver. She correctly judged that to have tried to enter the main road would have caused other traffic to alter its speed or direction. This would have been unsafe and contrary to good practice. A motorist with greater acceleration power available, such as a motorcyclist might have, might well have made a different decision and succeeded in entering the road without causing other traffic to brake. To the extent that the defendant's inability to do this was due to the speed at which she entered the straight section of the slip road, there is no obligation on a motorist to be going at any particular minimum speed round that bend. The dilemma is that the faster a driver enters the straight part of the slip road, the less time there is to make the judgment whether it is safe to proceed. There is also the consideration of having to keep a safe distance from any traffic ahead, a precaution which the claimant failed to take. Therefore even if the defendant was travelling slowly at the beginning of the straight section that was not unreasonable, and is not something which makes her later decision to slow down unreasonable. I consider her driving was in accordance with the good practice set out in the guidance to which I have been referred.
For these reasons I conclude that the defendant was not negligent in her actions leading up to the collision with the claimant.
In the circumstances it is not strictly necessary for me to consider this issue as it is academic. For the convenience of the parties, however, I shall deal with it briefly. If I am wrong in finding the defendant not to have been negligent, I am satisfied that the claimant contributed to the incident by his own negligence. Indeed this is not contested by Mr Woodhouse. At all times he was aware that the defendant's car was ahead of him on the slip road. In my judgment he cannot be criticised for taking two looks over his shoulder at the traffic, whether or not they were strictly "lifesaver" glances or looks. However he was, on his own evidence, negligent in two respects: he did not keep a safe distance from the vehicle in front of him, or keep to a speed which maintained such a distance while taking his eyes off the road ahead of him. He then exacerbated the situation by beginning to accelerate before he looked ahead of him. In short he made an assumption that the defendant would make the same judgment that he was making without taking into account the different capacities of a car from his motorcycle. I do not find this case remotely comparable to Ali. While Mr Woodhouse urged me to find the principal responsibility for the accident to be the defendant's I have to disagree. I would have found the claimant to have the major part of the responsibility for this accident and reduced his entitlement to damages by 75%.
For the reasons I have given there will be judgment for the defendant. I will hear submissions in relation to any consequential matters.
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