Angela Elizabeth Jungnickel v Robert Alexander Laing and Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SELLERS,LORD JUSTICE DAVIES,LORD JUSTICE RUSSELL |
| Judgment Date | 09 December 1966 |
| Judgment citation (vLex) | [1966] EWCA Civ J1209-4 |
| Court | Court of Appeal |
| Date | 09 December 1966 |
[1966] EWCA Civ J1209-4
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
(From: Mr. Justice Thesiger-London)
Lord Justice Sellers
Lord Justice Davies and
Lord Justice Russell
(suing as the legal personal representative of Woldemar Arthur Jungnickel deceased)
Mr. RAYMOND KIDWELL (instructed by Messrs. Steven sons) appeared on behalf of the Appellant (Third Defendant).
Mr. H. TUDOR EVANS, Q. C, and Mr. RICHARD ROUGIBR (instructed by Messrs. Barlow, Lyde & Gilbert) appeared on behalf of the Respondents (First and Second Defendants).
I will ask Lord Justice Davies to give the first judgment.
This is an appeal in a running down action from a judgment of Mr. Justice Thesiger given as long ago as the 8th December, 1965. I shall explain the delay in a moment. The action arose out of a fatal accident which occurred on the 26th November, 1962, on the M.1 near Harpenden at the place where the A.5 joins up with that motorway. I will have to go in a little more detail into the accident in a moment. But the broad outline is this. On that November evening at about 10 o'clock a Mr. Browning, the third defendant in the action, was driving an E. R. F. lorry, heavily laden, in a northerly direction along the M.1, having just joined it by the slipway from the A.5. He was in the slow lane. He was run into from behind by a Bedford lorry which was being driven by Mr. Laing, the first defendant, and was owned by the second defendants. The Bedford, Mr. Laing's lorry, having collided with the back of Browning's lorry, careered (to use a word that is in evidence) across the road and fell on its left side, blocking the centre lane and in part the fast lane. Various people gave warnings to oncoming traffic and other vehicles stopped; but unfortunately Mr. Jungnickel some little time later some along driving his Mini truck at a very fast speed in a northerly direction on the same carriageway and did not see, or saw too late, this obstruction in his way and crashed into the Bedford, suffering injuries from which he subsequently died. His widow brought the usual Lord Campbell's Act action, at first against the first and second defendants only, and subsequently against the third defendant, Browning, also. The judge assessed the global damages at a sum of £15,080. 19s. Od. Actually his arithmetic was wrong: it should have been 9s. Od.; but that does not matter. He found that the deceased, Mr. Jungnickel, was between 25 and 30 per cent, to blame. He did not fix the precise percentage. I suppose he was not bound to do so, though it is more usual to fix a percentage. As a result of hisview that the deceased was to blame, he reduced the damages from the £15,080 I have mentioned to a sum of £10,725. The plaintiff has not appealed against that; and the defendants do not appeal against the plaintiff. The plaintiff is not a party to this appeal, very sensibly and very wisely. As between the first and second defendants on the one hard and the third defendant on the other, the judge found that the first and second defendants were approximately 90 per cent, to blame and the third defendant, Browning, approximately 10 per cent. But there again, he did not fix a precise figure. He said that the share of the damages to be paid by Browning must be £1,000 and that the rest was to be borne by Laing and his employers. So far as the costs were concerned, however, he did adopt a percentage scale: Browning was to pay 10 per cent, and the other defendants 90 per cent.
As I say, that action was decided on the 8th December of last year. No appeal was made by anybody in time. But in July of this year the third defendant, Browning, applied to this Court and was given leave to appeal against his co-defendants out of time, in order to argue that the judge ought not to have found Browning guilty of any negligence. I gather that the first and second defendants were represented at that application, but they made no effective application at that time. Indeed they made no application until yesterday, when this case came on for hearing: they had filed a motion for leave to file a cross-notice in order to claim that Browning ought to have been found guilty to a greater extent than the learned judge had fixed. Leave was given by this Court for that notice to be filed.
I merely point out those dates to explain that the delay between the hearing of this action and the hearing of the appeal is no fault of the Court in any way but is entirely due to the dilatoriness of the defendants.
The finding of negligence against Laing by the learned judge is not disputed. Indeed it could not be. Laing was coming along the motorway in a northerly direction and, as I have said, he crashed into the back of Browning's lorry. The case madeagainst Laing was simply that he crashed into this lorry and obviously was keeping no look-out at all. His answer to that was: "Browning's lorry had no rear lights on it and I only saw it when I was a few feet away from it". That was the case made against Browning by Laing. But the learned judge rejected it.
I think it would be moat convenient if I turn now to the relevant passages in the learned judge's judgment where he sets out his conclusions. The judgment was based very largely on the acceptance by the learned judge of a witness called Yates who him self had come up the slipway from the A.5 in the same direction as Browning but some 100 yards or so, it would appear, behind him.
Mr. Yates said, first, that Browning's lorry was properly lit, that it had its rear lights on. That the judge accepted. That was a finding which was, of course, fatal to Mr. Laing, who himself was coming along with headlights, though dipped, and a fog light.
The second important finding of fact that the judge made on Yates' evidence was that when Laing's lorry was going along behind Browning's, but somewhat faster than Browning's, Browning's lorry, having safely reached the M.1, travelling along in the slow lane, made a sudden unexpected deceleration, as though the driver were changing gear.
What the learned judge said about these conclusions was this: "I am satisfied, after careful consideration, that Mr. Yates is right when he gave direct evidence of his belief that Browning's E. R. F. vehicle had lights on at the rear. I am, however, also quite satisfied, after seeing and hearing Mr. Browning and forming a view of his individual character and of his approach to things - and I do not mean that in any derogatory sense - that Mr. Yates is right in saying that Mr. Browning suddenly reduced speed as if changing gear and he did that when another vehicle was in fact close behind him. It would not surprise me if Mr. Browning did something unexpected, which was not usually (that is to say in many circumstances other than these) likely to be harmful to other vehicles or passers-by. But Ifeel sure, from what Mr. Yates said about noticing in certain circumstances when things are wrong, that Yates would have noticed the absence of rear lights for the reason that Yates actually gave.
"I have considered and rejected the possibility that at the vital time Yates got confused between either of these two vehicles and any other vehicle that might have made a third with Laing's and Browning's vehicles at the material time and had then gone on up in the Birmingham direction.
"My difficulty in this case is whether I ought to hold that Browning's change of speed suddenly and consistently with a change of gear was enough to constitute a breach of...
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