Coote v Stone
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DAVIES,LORD JUSTICE PHILLIMORE,LORD JUSTICE KARMINSKI |
| Judgment Date | 17 December 1970 |
| Judgment citation (vLex) | [1970] EWCA Civ J1217-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 December 1970 |
[1970] EWCA Civ J1217-2
In The Supreme Court of Judicature
Court of Appeal.
Civil Division
On appeal from Judgment of Mr. Justice MacKenna.
Lord Justice Davies,
Lord Justice Phillimore and
Lord Justice Karminski.
Mr. BARRY CHEDLOW, Q.C. and Mr. J.J. DAVIS (instructed by Messrs Butt & Bowyer) appeared on behalf of the Appellant (Defendant).
Sir JOSEPH MOLONY, Q.C. and Miss. DEBORAH ROWLAND (instructed by Messrs Rowley Ashworth & Co., Agents for Messrs Farnfield & Nicholls, "Warminster, Wilts.) appeared on behalf of the Respondents (Plaintiffs).
This is an appeal from a judgment of Mr. Justice MacKenna given at the Winchester Assizes on the 24th March last. The action arose out of a road accident, which I shall explain in a moment, and the result of the case was that there was judgment for the first plaintiff, Mr. Coote, against the defendant for £160. 5. 0., which was half of the damage assessed by the Judge; there was judgment for Mrs. Coote, the second plaintiff, the wife of the first plaintiff, for £900; and there was judgment for the defendant against the first plaintiff (though the order wrongly says it was against "the plaintiffs") for £52, 10. 0., being half of the defendant's damage. That was damage, I think, to his motor-car.
The accident happened on the 6th November, 1967, at about 2.40 in the afternoon, a clear and very bright day, on the road A.303 between Wylye and Mere. Both cars, the Vauxhall which the defendant was driving and the Anglia which Mr. Coote was driving with Mrs. Coote as a passenger, were travelling in the same direction from Wylye towards Mere. Apparently the road out of Wylye is at first a very steep and winding hill and then, when one reaches the top of the hill, the road becomes a Clearway. It is a Clearway for some 10 miles or so, and immediately it starts there is some 1200 yards of straight road. We have photographs of the road which show that it is perfectly straight. It is 21-ft.6 wide and a road which, in ordinary conditions, should give no possibility of trouble at all. Both parties were motoring in a south-westerly direction; and much is made of this by Sir Joseph Molony in his address to the Court. The sun would be getting low at that time of year, and the evidence was that the sun was really quite dazzling to any motorist who would be travelling in that direction.
The facts as found by the Judge were these. Some 500 yards after the commencement of the Clearway Mr. Stone, who had been driving some distance in front of the Ford Anglia, hada complaint from his little daughter who was in his car that she felt sick, as children sometimes do, as we all know, in a car. He therefore stopped with a view to possibly letting the little girl get out or giving her a glass of Lucozade which apparently they carried in the car. He stopped very close to the side of the road; he thought that possibly his near-side wheels were on the grass verge; and in about two minutes along came Mr. Coote in his car and crashed into the back of Mr. Stone's car and pushed it off the road. Those are the facts that the Judge found, and I will recite his conclusions shortly.
That was a case utterly different from the case pleaded on behalf of the plaintiffs. Their case was — and I summarise it — that Mr. Stone's car had been behind them, that there was a Hillman car going up the hill in front of them; as they reached the top of the hill, the Hillman started to draw away and Stone's car — rapidly, it would appear — overtook the Cootes and cut in right in front of the nose of Mr. Coote's car, giving Mr. Coote no time to avoid the accident at all. That story was spoken to by Mr. Coote, by Mrs. Coote and a passenger whom they had in the car. I think his name was Gray. The Judge said that he rejected that story entirely and that it was either invented or imagined. So, as the pleadings stood, that would have been an end of the case. But apparently during the course of the opening, an amendment of the plaintiffs' particulars of negligence was asked for. That amendment was never, so far as any record of the case that we have got is concerned, actually made in the pleadings, though we have been told by Sir Joseph Molony that his Junior Miss Rowland did in fact write out an amendment and hand it to the Associate. However, the words which the Judge recites as being the amendment that he permitted are these: "Further or alternatively stopped his car on a Clearway and or did so without any or any adequate warning of his intention". Sir Joseph agrees that in the event and on the Judge's findings, the latter part of that — that is to say,"did so without any or any adequate warning of his intention" — goes out of the case. There could have "been no question of giving any adequate warning of stopping on the Clearway. He was there to be seen stopped, as I say, for two minutes; and, of course, two minutes may very well be an under-statement of time. The whole case therefore, as I think, turned on the allegation that Mr. Stone stopped his car on the Clearway, that that was a breach of the relevant regulation, and that that breach entitled the Cootes to bring a civil action for damages.
The regulation is to be found in the Various Trunk Roads (Prohibition of Waiting) (Clearways) Order, 1963, Statutory Instrument 1172 of 1963, and the relevant regulation is 4: "Prohibition of waiting on main carriageways. Save as provided in Article 5 of this Order no person shall, except upon the direction or with the permission of a police constable in uniform, cause or permit any vehicle to wait on any of those main carriageways forming part of trunk roads which are specified in Schedule 1 to this Order.
That regulation was made under Section 26 of the Road Traffic Act, 1960, which deals with traffic regulation outside London Traffic Area. The relevant part of that section is: "The authority hereinafter specified may make an order (in this and the three next following sections referred to as a 'traffic regulation order') as respects any road outside the London Traffic Area where it appears to the authority making the order that it is expedient so to do — (a) for avoiding danger to persons or other traffic using the road or any other road, or… (c) for facilitating the passage of vehicular traffic on the road or any other road"; and, by sub-section (7) of that section, anyone who commits a breach of any of the regulations made there under is liable on summary conviction in the first instance to a fine of up to £20.
The Judge, as I think, based his judgment entirely on that regulation. He expressed his findings very shortly.He said this: "He" — that is Mr. Stone — "was clearly in breach of the regulation. It is also clear that but for the breach the collision would not have happened. If he had not stopped where he did, Mr. Coote would not have collided with him. That is obvious, and it is enough, I think, to make Mr. Stone responsible for the collision, at least in part. His Vauxhall Victor being stopped on a part of a road which should have been kept clear was an illegal obstruction or, in other words, a nuisance. If members of the public using the highway, like the Cootes, have suffered injury through colliding with this illegal obstruction they are, in my view, entitled to recover damages against Mr. Stone who created the nuisance, subject only to the provisions of the Law Reform (Contributory Negligence) Act. That is one way in which the case can be put against Mr. Stone, and I can see no answer to it". Then the learned Judge goes on to consider an alternative possible ground, in substance the same, with regard to the Highway Code. He says this: "Another way was suggested by Sir Joseph Molony, arguing on Mr. Coote's behalf. He referred me to Section 74 of the Road Traffic Act, 1960, which says that any failure to observe the Highway Code can be relied upon by any party to civil proceedings as tending to establish any liability which is in question in these proceedings". Then he referred to Rule 97 of the Highway Code, which forbids drivers to stop on a Clearway, but said that it was unnecessary for him to consider that alternative. All I would say about that alternative is that, as is plain from the words which the Judge accurately read, a breach of any of the provisions of the Highway Code (and the one in force at the date of the accident was different from, though to the same effect as, the one to which he referred) can merely be relied upon as tending to establish liability. The learned Judge did not rely upon it; and, for myself, I do not think that in this case it adds anything at all to the breach of the Clearway Regulation which was allegedby the amendment.
Mr. Chedlow's main submission for the defendant, the appellant, was that the Judge was quite wrong in concluding, without any real discussion on the matter or argument about it, that a breach of the Clearway Regulation gives a civil remedy in damages. I am bound to say that I think there is great force in that. Mr. Chedlow's argument was supported by authority, the most relevant of which, though I am not suggesting that any of them were irrelevant, is, in my view, a decision of Mr. Justice Morris (as he then was) in Clark v. Brims, reported in 1947 1 All England Law Reports — at least, that is the report which we were asked to look at — at page 242. That case was one in which a vehicle had no rear light on it during the black-out during the last war, and in consequence of that another vehicle ran into it and suffered damage. It was sought to say that because there was a breach of the regulations which cover the lighting of motor vehicles, the person who had had the misfortune to run into this unlit vehicle and suffered injury was entitled to damages for a breach of the...
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