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||Neutral Citation Number:  EWCA Civ 290
||Case No: B3 / 2010 / 0887
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NEWCASTLE UPON TYNE
MR JUSTICE BURNETT
||Royal Courts of Justice
Strand, London, WC2A 2LL
||1st March 2011
B e f o r e :
MASTER OF THE ROLLS
LORD JUSTICE SEDLEY
LORD JUSTICE HOOPER
||- and -
(DAR Transcript of
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Mr Grover (instructed by Herzog Solicitors) appeared on behalf of the Appellant.
Mr Woolf (instructed by Watson Burnett) appeared on behalf of the Respondent.
HTML VERSION OF JUDGMENT
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Lord Justice Sedley:
- On an early summer's evening in June 2002 the claimant, Sally Stoddart, who was only 14, was riding her horse, Trigger, with her friend Hayley along a bridleway near Sunderland.
- The bridleway met Burdon Lane, a derestricted road on which the speed limit was therefore 60 miles an hour, from where the two riders needed to cross the road and turn right and return about 120 yards to their stables. Hayley crossed without incident. She was not immediately followed by the claimant, because the claimant had held back to practise a jump before following Hayley across the road. In the interval between the two girls crossing, the defendant came down Burdon Lane in his Ford campervan with a trailer behind it. He encountered the claimant emerging from the bridleway in circumstances that made a collision unavoidable. The horse reared, struck the nearside front wing of the campervan and fell, throwing its rider, the claimant. It fell on her, causing her a nasty injury, for which, in the event, damages were agreed.
- The question for Burnett J, who tried the case in the Newcastle County Court, was the question of liability. He had the same advantage as we have had with appearances by Mr Eliot Woolf for the claimant and Mr Tim Grover for the defendant.
- The judge found that the claimant was an experienced rider; she had been riding since she was seven, and that Trigger was a dependable horse who was not problematical.
- At the point at which the collision occurred the claimant had a view of about 300 metres to the right. Hayley Watson gave evidence, which the judge accepted of hearing the claimant coming onto the road behind her and then a bang as the collision occurred. Drivers following the defendant also gave the judge helpful and reasonably clear accounts of what they had observed. There is no need for me to run through this in detail because the judge, on the basis of their evidence, made clear findings which are not in dispute before us.
- One of the elements of the evidence however, which the judge clearly gave weight to, was the evidence of a Mr Thurlow, one of the following drivers, who said:
"I know from experience that horse riders often travel in pairs, so I slowed in case a second horse appeared."
- The defendant for his part had proceeded without abating his speed, although his speed was not in itself excessive. He told the judge that it had not occurred to him that there might be more than one horse in the vicinity. The judge in consequence found that the defendant had been travelling at something like 40 miles an hour along Burdon Road, that he and the following drivers had slowed down when they saw the first rider cross the road, but that the defendant then speeded up a little after she had crossed, not allowing for the possibility of a second rider emerging. When the claimant did emerge it was, as the judge found, at a fast walk or a trot.
- The judge turned from those findings to his conclusions. He concluded at paragraph 31 that the defendant "should have been on the alert for further horses from his left" and that he was not. He concluded at paragraph 32:
"that the defendant was in breach of duty in failing to appreciate the possibility of a second horse emerging and then speeding up before reaching the bridleway."
- The judge then turned to the arguments which had been advanced to him. He rejected the submission that the defendant's driving had not been causative at all of the accident. The judge said:
"Had he been doing even a few miles an hour slower the likelihood is that he would have stopped before impact."
- That is a finding which cannot be disturbed on this appeal, because in granting permission to appeal Maurice Kay LJ refused permission to appeal on liability and confined his grant of permission to apportionment. That is what the judge turned to in paragraph 34. He recorded that he had been reminded of the judgment of Christopher Clarke J in Toropdar v D  EWHC 2997 (TCC), a decision to which I will come in a moment and which itself recites and relies upon authority in this court relating to apportionment in the light of relative causative effect. The judge directed himself that both blameworthiness and causative effect were matters that he had to appraise and which had to form the basis of apportionment of liability. He noted that in most cases the greater causative effect of injury is more properly attributed to the vehicle where a motor vehicle has been involved, but he reminded himself that "the rider of a horse is not a pedestrian". "Nonetheless," he went on:
"I consider that the Defendant's blameworthiness, that is to say because he was driving a vehicle, had more causative effect than that of the Claimant."
I think probably at that point the judge meant "conduct" rather than "blameworthiness". He then turned to blameworthiness in paragraph 36 and said:
"The question I am concerned with relates to the prudence to be expected of an experienced 14 year old rider, as was the Claimant. I do not think that it is appropriate to equate her with a child of 10 running from a pavement into the path of a vehicle. The Claimant fully recognised the need to check before crossing the road. She was an extremely experienced rider, who had been taught for the best part of seven years. It is accepted that she made an error, which amounted to a failure to stop and a failure to look before crossing."
- The judge then had to make an appraisal in what would ultimately be arithmetical terms of the relative fault of the parties. He concluded as follows:
"In terms of her blameworthiness, even making some allowance for her relative youth, I am satisfied that she was significantly more at fault than was the Defendant. He was at fault in respects that I have identified, but his blameworthiness is, as it seems to me, at the lower end of the scale, given that I have concluded that he was keeping a proper look out and his speed was a good deal lower than it might well have been on that road. Taking account of both blameworthiness and causative effect, my conclusion is that contributory negligence in this case should be 50%."
- Mr Grover, in an excellent submission, has urged upon us that this is not a sustainable apportionment. He has not been able to point, and has not sought to point, to any error of law or of approach on the judge's part, but he submits that even with a correct self-direction the figures with which the judge has emerged from the exercise are simply unsustainable. On the judge's own findings, Mr Grover submits, an apportionment of the order of 75% against the claimant would be appropriate.
- Mr Woolf for his part reminds us of the principles by which the judge was directing himself in the present case and which are set out helpfully in the judgment of Christopher Clarke J in Toropdar. There is no need for me to cite from this in any detail. It is sufficient that Christopher Clarke J reminded himself of what this court said in Lunt v Khelifa  EWCA Civ 801. In that case Latham LJ said at paragraph 20:
"But nonetheless, bearing in mind the fact that this court has consistently imposed on the drivers of cars a high burden to reflect the fact that a car is potentially a dangerous weapon, I find it difficult to see how I could properly categorise the judge's apportionment in this case as plainly wrong.."
- Brooke LJ, agreeing, reiterated that it must be borne in mind always that a motorcar is a potentially lethal instrument.
- Mr Grover, accepting these principles, has nevertheless argued that one starts this apportionment exercise from the fact, as found by the judge, that the claimant was significantly more at fault in terms of simple blameworthiness than the defendant. The defendant for his part, Mr Grover says, was guilty of certainly an error of judgment but not of gross negligence, and was, as the judge recognised, towards the lower end of the scale of fault as a driver. For her part, the claimant, Mr Grover says, was an experienced rider who knew this road well and was doing something foolish when she rode out without looking.
- As to the adjustment that has to be made in relation to causative effect, or causative potency as it is often called, he accepts that a car is a potentially lethal instrument which requires therefore great care in its handling, but he points out also that the claimant herself was not a pedestrian and that a horse too is capable of doing a great deal of damage, both to its rider -- because if she falls she falls from a height and may be rolled on by the horse, as happened here -- and to others on the road, including motorists themselves, if it goes out of control.
- All of these points seem to me to be well taken, but none of them appear to me to be of sufficient force to make it apparent that the judge has reached a conclusion on apportionment which was not open to him. Starting as he did from a realistic appraisal of blameworthiness as being greater in the claimant than in the defendant, he was required by law to adjust that apportionment for the relative potency of the vehicles (I include both the horse and the car in that phrase) involved with the accident. That is what he sought to do, and he was without doubt entitled, in my judgment, to take into account in that respect the fact that, although the driver was not driving recklessly, he had made quite a significant error of judgment in not taking caution from the emergence of one horse and slowing down markedly to allow for the possible emergence of another.
- Rolling all those matters into one, as the judge had to do, it seems to me that he was fully entitled to conclude in the end that contributory fault was at the level of one half, but no more, in the claimant. I would dismiss this appeal.
- I agree.
Lord Justice Hooper:
- I also agree. Despite the well presented arguments on behalf of the appellant there is nothing I can usefully add to my Lord, Sedley LJ's reasoning.
Order: Appeal dismissed
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