Brown v Thompson
|England & Wales
|LORD JUSTICE WILLMER,LORD JUSTICE WINN,LORD JUSTICE EDMUND DAVIES
|08 December 1967
|Judgment citation (vLex)
| EWCA Civ J1208-2
|1965. B. No. 5967.
|Court of Appeal (Civil Division)
|08 December 1967
 EWCA Civ J1208-2
In The Supreme Court of Judicature
Court of Appeal
Appeal from Waller J.
20th April, 1967.
Lord Justice Willmer
Lord Justice Winn and
Lord Justice Edmund Davies
Mr Michael Wright (Instructed by Messrs Stevensons) appeared on behalf of the Appellant (Defendant).
Mr John Davies, Q.C., (Instructed by Messrs Jas. H. Fellowes & Son) appeared on behalf of the Respondents (Plaintiffs).
I have asked Lord Justice Winn to deliver the first judgment.
On the 21st Do comber 1965 Mr William Brown and his wife issued a writ against Mr Joseph Thomson claiming damages for personal injuries resulting from a road accident. That date was two months short of the expiry of the period of the statute of limitations; the accident to which the writ related occurred on the 18th February 1969. There was no need for any such delay since the medical condition of each of the plaintiffs was fully stabilised long before the issue of the writ. There may, of course, have been negotiations. It does seem regrettable that the trial of this action, which was heard on the 19th and 20th April 1967took place four years and two months after the accident happened. It is, however, unnecessary to go into that in detail since in my view this is an absolutely simple case, though it occupied a good deal of time before the learned trial judge, and has been fully argued in this court. It is right, of course, that parties should have access to an appellate court in a suitable case; to what extent this was a suitable case for appeal, I shall presently consider
At 0245 or 0300 on the 18th February 1963, Mr Brown was driving his Humber Hawk motor car towards Epping along, a road which runs on the fringes of Epping Forest. It seems from the plan that there were trees and thick hedges along the sides of the road. At the material part the road was 28 feet wide. It had street lamps along the portion which had been traversed by Mr Drown before he came to the scene of the accident; the last lamp was some 280 feet, or possibly 100 yards, short of the point whore the impact occurred. The road was covered with a thin coating of snow; there was no heavy snow falling at the time; the evidence showed that there were intermittent flurries of snow. It is material to remark that on the fringes of the carriageway there was a certain amount, though not a great deal, of accummulated snow and slush. The snow bore its characteristic London area tinge of dirty grey, and the trees and bushes in the vicinity, as well as the surface of the road, showed that colour by reason of the powdering of snow which had fallen, and no doubt had become progressively dirtier since it fell.
Mr Brown drove into the back of a lorry which was, as the learned judge found, wholly unlighted in the rear and bad on it at the rear no reflectors. That lorry was stationary facing in the same direction as that in which Mr Brown was driving 6 feet out from its nearside kerb; the front was slightly further out, 5 feet 3 ins. The width of the lorry was 7 feet 4 Ins. so that it presented a considerable obstruction on the near side 14 foot half of this 28 fleet wide road, Mr Brown in fact did see the lorry be fore he hit it, how long before it is impossible to say. There was apparently Just time for him to say to his wife, and or his wife to say to him, somethingto the effect: "Good God, what's this?" His description of what he did see was "a great grey-black thing" suddenly looming up in front of him. He had undoubtedly turned out from his nearside to some extent before he hit the lorry by at least the difference between a track 5 feet from his nearside kerb and a point 8 feet from his nearside kerb. That is demonstrated by the fact that his nearside rear wheel was found after the accident 6 feet from his nearside kerb. It does not follow that before he began to turn he had been driving close in to his nearside kerb.
The learned trial judge made findings of fact which are not challenged by Mr Michael Wright, who has most cogently and force-fully maintained that upon these findings of fact the learned judged conclusion as to the distribution of fault was erroneous. There is no suggestion that this judge applied any wrong principle. What is said, so far as liability is concerned, is that the 20 per cent of responsibility which the learned judge decided rested upon Mr Brown was quite an inadequate attribution of his share of the blame or responsibility or liability. Mr Wright was not disposed to enter into any question of percentage figures, but he said that the learned judge ought to have found, and this court ought to declare a share of responsibility on the part of Mr Brown of 50 per cent or more. As I say, the judge said 20 percent, and indicated clear reluctance in imposing even that much responsibility upon Mr Brown.
There are detailed findings of fact. The court has had its attention directed to all of them at least once, but really all that matters for the present purpose is what the learned judge said at page 5 between B. and D.: "The next criticism" (that, of course, is a criticism made by Mr Michael Wright) "is that it is said, having regard to the weather conditional, Mr Brown was going faster than he should have been. Although it may seem hard to ascribe part of the responsibility for this accident to Mr Brown, I do at the end of the day find that part of the responsibility did lie on him, it seems to me either that he ought not to have been driving with dipped headlights if he was driving at the speed he was, or, if he was driving with dipped headlights, he probably ought not to have beengoing quite so fast in the particular conditions that existed, or if it was reasonable to go at that speed, then he could not have been keeping quits as good a lookout as he should have done". I must admit that, after having read that passage several times, I am not at all sure whether it refers to and defines only one fault found by the learned Judge to have been established against Mr Brown or three. But in substance the way the matter has to be looked at is that speed is what the Judge thought was wrong with Mr Brown's driving, particularly as on the previous page 4 at D. he had said: "The second thing that is criticised on the part of the defendant is that Mr Brown was driving with dipped headlights. Mr Brown says: 'Well, I always drive with dipped headlights: it is my practice. The question is, can it be said that that was negligence that contributed to this accident? in my view by itself it cannot". It seems to me, therefore, that what the learned judge must have meant is that there is no negligence in driving with dipped headlights per se, but the fact that you are driving with dipped headlights may. In relation to the speed at which you are traveling and to the prevailing conditions, and the difficulty of keeping a proper lookout in total indicate that the manner of driving was not sufficiently cautious for the safety of the driver himself in that his speed was excessive.
The evidence about the dipped headlights was dimply this, that Mr Brown, who had driven over this road since 1959, had never been bothered by the hypothetical animals which Mr Wright kept chasing; he always drove with dipped headlights; it was his practice; ha preferred it and, rightly or wrongly, thought that it was safer so to drive; he bad been in a well lighted street area; and he said that on this occasion, as he was about to leave the lighted area, he switched on his headlights in the dipped position. He said that he thought that his dipped headlights would give him a visibility of no more than 60 feet or alternatively 75 feet. It seems to me that he must have been mistaken in saying that. There was evidence from an experienced police patrol car driver that the dipped headlights would have given a visibility of 30 yards, and that if theyhad been full on, it was reasonably likely that they might have given 100 yards visibility despite the glare from the falling snow. Whatever the visibility in fact was, the fact that the headlights were in the dipped position was helpful to Mr Brown in that they not only dipped but pivoted towards his nearside.
Mr Brown did not see this lorry in time to take effective avoiding action. He turned out, but his car ran under the tailboard of the lorry, it was a 87 feet long lorry, and probably the headboard may have been 18 feet from the tall, end the back axle may well have been 4, or even as much as 5 feet in from the tail end of the lorry. At any rate. It is the fact that the bonnet of Mr Brown's car ran right under the lorry platform at the rear without apparently striking anything which caused it any serious obstruction until it appears that the front axle or one of the wheels struck against the back axle of the lorry; at that moment the tailboard of the lorry struck one or both of the pillars of the windscreen of the car. It seems to me that these facts do not suggest any great speed because had the speed of the car been anything of the order of or exceeding 50 or 60 miles an hour, one would probably have found that the whole of the top of the car would have been very badly damaged, if not reduced to scrap.
The learned judge found on the evidence as a whole, and preferring greatly the...
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