Daniels v Jones
|England & Wales
|Court of Appeal
|LORD JUSTICE HOLROYD PEARCE,LORD JUSTICE WILLMER,LORD JUSTICE PEARSON
|19 June 1961
|Judgment citation (vLex)
| EWCA Civ J0619-1
|19 June 1961
(Executrix of Joseph Lionel Daniels deceased)
 EWCA Civ J0619-1
Lord Justice Holroyd Pearce
Lord Justice Willmer
Lord Justice Pearson
In The Supreme Court of Judicature
Court of Appeal
Mr. Stephek Chaphan, Q.C. and Mr. K. Dunbar Van Oss (instructed by Messrs. Greenwoods) appeared on behalf of the Appellant (Defendant).
Mr. John Asolpson, Q.C. and Mr. R.C. Huttof (instructed by Messrs. Field, Rosce & Co., Agents for Messrs. Little & Bloxam, Stroud, Glos.) appeared on behalf of the Respondent (Plaintiff).
(Appeal dismissed with costs. question of apportionment to be dealt with by judge below. If required, order for interest on balance of damages not paid into court).
Thursday, 15th June. 1961
This is the defendant's appeal from a judgment of Mr. Justice Winn awarding £14,890 damages to the plaintiff, as executrix, under the Patal Accidents and Law A Reform Acts. On the 9th January, 1958, the plaintiff's husband died in a motor car accident at 9 o'clock in the morning on the main road between Derby and Ashbourne. There are two issues in this appeal: first, whether the learned judge was right in putting the whole blame on the defendant and acquitting the deceased of negligence; and secondly, whether the judge was right in his assessment of the amount of damages under the Fatal Accidents Acts. The two issues are wholly separate, and for convenience the issue of liability has been argued out first, As the matter is fresh in our minds it is convenient to give judgment now on the issue of liability.
The accident happened on a wet day. Both parties were driving Jaguar cars, the deceased from Derby and the defendant towards Derby. They came into collision on a straight stretch of road some 200 yards long and 22 feet wide. Immediately before the accident each had been driving in the neighbourhood of 55 or 60 miles an hour. The deceased had been following a fully-laden Commer lorry, which was at all material times driven at about 25 to 28 miles an hour. He did not try to pass the lorry before it had cleared the bend in the road on the Derby side of the 200 yards stretch. When he cleared the bend thedeceased proceeded to pass the lorry. The judge found that the passing was - "virtually completed" when the defendant came in sight. By that I understand him to mean that the deceased was practically on the point of returning to his correct side. At that moment the defendant, who was coming from the opposite direction at a speed of about 55 or 60 miles an hour, surmounted the crest of an incline at the other end of the 200-yard stretch of straight road. He at once saw the lorry on its correct aide and the deceased's Jaguar passing it on the off side at a distance of about 140 yards. There was in fact no emergency, but the defendant thought that there was, or would be. Therefore he put on his powerful disc brakes hard — he "slammed them on", to use words which he accepted in evidence — and his car, travelling fast on a wet road, went into a skid over the white line and on to his wrong side of the road. He tried to turn to his near side, but his car did not respond. He did not try turning into the skid or try releasing his brakes to, correct it.
While this was happening, the deceased completed his passing of the lorry, returned to his near side 25 yards in front of it, saw the defendant coming towards him, turned his car to the left so that it mounted the kerb and straightened it out so that his off side wheels were in the gutter and the near side was almost touching the hedge that ran alongside the verge of the road. He had almost brought his car to a stop. Thus he was almost off the road altogether, but the defendant's car crashed into him. The lorry which the deceased had passed, though going more slowly, was heavier and could not pull up in time to avoid hitting the off side of the deceased's car with the side of the lorry and pulled up more or less alongside him.
The judge held that the defendant had panicked; that he came too fast over the blind crest of the hill, especially if he had not the competence or control to deal with a situation which his speed might create. He also held that the deceased could not have foreseen such behaviour and that it was reasonable for him to overtake the lorry when he did.
Mr. Chapman forcefully argues that the learned judge was wrong in not finding substantial negligence against the deceased. He relies on two main grounds. First, he contends that the stretch of 200 yards was not a safe place to pass, even with a clear road, because of the chance that a fast car appearing from the other direction might act as the defendant did or in some other way which would lead to an accident; and therefore the judge erred in holding that it was proper for the deceased to overtake at that point. Secondly, he argues that the learned judge was wrong in saying that the defendant panicked. The defendant was admittedly travelling too fast, but he was put into an emergency by the action of the deceased. It was not (it is said) put to him in the witness-box that he panicked, and it sould not be held against him without his having an opportunity of answering that allegation. Moreover, it is argued, the learned judge's disapproval of the defendant's behaviour during and at the end of the skid misled him into overrating the defendant's initial fault and underrating that of the deceased.
I see no sign of the judge being misled by disapproval of the defendant's conduct. If the judge was correct in his assessment of negligence, he was entitled to make the animadversions - which are in no way immoderate - on the defendant's driving when a man had been killed through no fault of his own. It is otherwise, of course, if it be shown that the judge erred in his assessment of negligence. When a judge has listened to all the evidence, as in this case, has dealt with it in a full and careful judgment which contains no error or mistake of facts or evidence, and has come to a clear conclusion, we should be slow to re-try the case in this court on -transcript evidence which can never recapture the life and quality of the original trial; and in spite of all the forceful advocacy of Mr. Chapman we should, in my judgment, arrive at the same conclusion as did the learned judge. The only thing that can be put against that conclusion is that the deceased passed the lorry in this stretch of road in wet weather. I do not accept the wetness of the weather as in itself making the difference on this occasion between safe and unsafe- passing. It is true that- the defendant, by locking his brakes when going very fast, produced a bad skid; but I see no reason why the defendant should anticipate any skid of those proportions. The local authorities certainly do not seem to regard this as a place where no one should pass, since the photograph p. 6 and the plan show that there are solid white lines at each end of the stretch but only'a dotted line at the relevant place. If any car can pass at this point, the car of the deceased, with its fast acceleration, was particularly well qualified to do so.
The lorry driver had no criticism of the fact that the deceased overtook, or of the manner of his overtaking. The learned judge, quoting his evidence, said: "'He did not squeeze me at all; it was a perfectly comfortable passing operation, and', said he, 'the black Jaguar'" — that is, the car of the deceased — "'was back on his near side of the road and had drawn ahead -of me to the extent of about 25 yards before the emergency occurred'"; and the learned judge, to quote his words, accepted the "praise unqualified by any reproach, for the manner in which. and the position at which he chose to make this passing manoeuvre".
One may judge what, if any, crisis was created by the passing manoeuvre of the deceased if one regards what in fact the deceased achieved by the time of the impact. During the intervening time the defendant had not slackened speed to a very great extent and was probably going not very much less fast than he would have done had he merely taken his foot off the accelerator, for his momentum continued in the skid and the impact was a severe one. The deceased, however, during the time available, had finished his overtaking, which was already "virtually completed11; had returned to his near side 25 yards in front of the lorry; had turned on to the grass verge and straightened up, and had brought his car almost to a standstill. Those indisputable facts prove that there was no crisis even had the defendant continued fast on his own side. It is said that the defendant had reason to believe that there was a crisis and that the deceased should have foreseen that a driver driving too fast might think that there was a crisis when there was not and might lose his head, or, if that is too severe an expression, might act so inadvisedly as to produce a fast and dangerous skid which he would fail to correct in a matter of 65 yards and which would carry him to the off side verge of the road. But why should he? It is impossible foresee all the vagaries of negligence. The learned judge refused to accept that the deceased should have foreseen the defendant's loss of control. At.-page 34 "A" he said: "It appears to me that it was quite a reasonable thing, in no way unreasonable, for the late Mr. Daniels to pass where he did pass in the prevailing conditions"; and later he said: "I am quite satisfied that if Mr. Jones had had control of himself, he would have had control of his car, and if he had had control of himself and of the car, he could easily have avoided the collision which occurred".
In my judgment, the learned judge was entitled to find as he did, and 1 see no ground for thinking that his decision was wrong....
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Table of Cases
...v. State (1968) 5 N.S.C.C. 196....…………....................................................................11, 12 Daniel v. Jones (1961) 1 W.L.R. 1103 .……………...............................................................…16, 17 Daniel v. State (1991) 8 N.W.L.R. (Pt. 212) 715…….....................