Dymond v Pearce
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SACHS,LORD JUSTICE STEPHENSON |
| Judgment Date | 13 January 1972 |
| Judgment citation (vLex) | [1972] EWCA Civ J0113-2 |
| Date | 13 January 1972 |
| Court | Court of Appeal (Civil Division) |
[1972] EWCA Civ J0113-2
In The Supreme Court of Judicature
Court of Appeal
(On appeal from decision of Mr. Justice Bridge at Exeter, 25th June,1971.)
Lord Justice Sachs
Lord Justice Edmund Davies and
Lord Justice Stephenson
MR R.J. HARVEY. Q.C. and MR A.R. TYRELL, (instructed by Messrs. Davies, Arnold & Cooper, Agents for Messrs. Geoffrey Stevens & Sabel of Plymouth) appeared on behalf of the Appellant (Plaintiff).
MR COLIN FAWCETT. Q.C. and MR MICHAEL TURNER, (instructed by Messrs. Bond, Pearce & Co. of Plymouth) appeared on behalf of the Respondents (2nd and 3rd Defendants).
This is an appeal from a judgment of Mr. Justice Bridge given at Exeter Assizes on the 25th June last year. It is now reported in 1971 Road. Traffic Reports at page 470. On that occasion there came before the learned Judge the claim of a pillion riding passenger on a motor cycle. The driver of that motor cycle had in Wolseley Road, Plymouth, driven it into the back of a large stationary lorry at about 9.45 p.m. on the 26th August, 1966, a Bank Holiday. The plaintiff passenger having recovered judgment in default of defence against the driver of the motor cycle, who was the first defendant, was seeking at Assizes to recover damages also against the second and third defendants, who were respectively the owner and driver of the lorry. The case against those two defendants was founded on alleged negligence and alternatively on alleged nuisance. The learned trial Judge, however, found against the plaintiff on both issues. Hence this appeal.
The facts in essence are simple and were related by the learned trial Judge as follows: "Wolseley Road, Plymouth, carries at certain times of day a substantial volume of traffic. It is in a built-up area, and subject to the statutory speed limit of 30 miles per hour. In the relevant length it is divided into twin carriageways by a central reservation which is broken at points to allow traffic to cross into side streets or to make 'U' turns. Each carriageway is some 24 feet in width. The lorry which was parked by the third defendant was on the outside of a very shallow right-hand bend in the north-bound carriageway. The lorry was some 7 ½ feet wide; accordingly it left unobstructed not lass than 16 feet of carriageway for north-bound traffic to pass between the offside of the lorry and the central reservation.
"The time of the accident, as I have already indicated, was 9.45 p.m. late in August after lighting-up time. The street lamps in Wolseley Road were alight; they offered excellent illumination. The lorry was parked immediately beneath a street lamp and its lights were also properly illuminated. Approaching the point where the lorry was parked in a northerly direction, as was the motor cycle driven by the first defendant, there was nothing whatever to obstruct the view of the parked lorry for a distance of at least 200 yards.
I am quite satisfied on the evidence that this accident happened for one reason only, namely, that the first defendant simply was not looking where he was going. If he had been, the accident could not have occurred, because there was the lorry plain for al to see. I have heard the evidence of a Miss Lashbrook, which I accept. She and another young girl with two young boys, all in their teens, were standing on the pavement talking and laughing together as the motor cycle ridden by the first defendant passed by, and her evidence is that as the motor cycle passed both the rider and the pillion passenger turned to look at the group on the pavement. They waved and one of them shouted. It is quite plain to my mind that It was because the motor cycle rider, perhaps in a Bank Holiday mood, allowed his attention to be distracted in that way from the road ahead of him that he reached a position, travelling as he himself says, at a speed of 30 to 35 miles per hour, so close behind the lorry before he realised it was in his path, and when he did realise that it was too late to take avoiding action."
How the lorry came to be parked on that dual carriageway was stated in the course of some further findings of the learned trialJudge. He referred to the fact that the driver of the lorry lived in a semi-detached house, No. 37, Wordsworth Crescent. That crescent ran parallel to Wolseley Road, but on the opposite side of the carriageway where the lorry was parked. The lorry driver's house fronted on to Wordsworth Crescent: it had no traffic entrance on to the Wolesley Road, nor, so far as we were informed, had it any other access to it beyond a common passage way leading from Wolseley Road to Wordsworth Crescent. In one sense, however, it can properly he said that the Wordsworth Crescent houses backed on to Wolseley Road.
Wordsworth Crescent was an extremely narrow residential street and one in which it was quite impracticable to park a large lorry. The lorry driver on this occasion had gone to his employer's premises some five miles away from his home at about 5 o'clock in the afternoon having in mind a long journey which he was going to make with the lorry the next day. He loaded the lorry in question and then drove it back towards his home with a view to making an early start on a drive to London the following morning at about 4 a.m. He adopted that course for his own convenience, as be preferred this way of doing his work to fetching the lorry from his employer's premises in the early morning. He parked it in Wolseley Road at about 6 o'clock in the evening and in due course he went and turned on the lights when lightlng-up time came.
So far as negligence is concerned, it is sufficient to say that the finding of the learned trial Judge in favour of the defendants was right. To park a lorry, even of the size of the one under consideration, under a good street lamp on a one-way carriage track 24 feet wide with its tall lights on at theappropriate time cannot be said to be negligent, at any rate when there was no evidence of difficulties likely to be caused to traffic (the traffic was said to be light at the relevant times), or as to the risk of heavy mist or fog supervening. Moreover, the lorry was parked in that position on a bend which is the more likely to be clear of other vehicles pursuing a normal course.
Accordingly, in this court the real challenge concerned the learned trial Judge's finding on the issue of nuisance. He held that the leaving of the lorry on the highway did not constitute a nuisance; that even if it did, damage of the kind suffered was not a foreseeable consequence; and, moreover, that the nuisance was not in any event the cause of the accident.
The first question to be answered is whether or not this lorry when left on the main road from 6 p.m. with a view to its not being moved until 3 a.m. constituted at 9.45 p.m. an obstruction of the highway which in law should be held to be a nuisance. It is at the outset to be observed that it was conceded by Mr. Fawcett, appearing for the owner and driver of the lorry, that there was no question in this case of the driver being able in relation to the road where the lorry was left to assert any special right as being the occupier of adjoining premises. That was an inevitable concession, in view of the fact, already mentioned, that 37, Wordsworth Crescent had no traffic exit on to Wolseley Road; nor was the lorry parked on the Crescent side of the road. It follows that the question whether the lorry constituted an obstruction falls to be determined in the same way as if the driver was any other vehicle user who had no such special rights.
The law on the question as to what constitutes a public nuisance in a highway is plain, despite the fact that in certain authorities cited to us dealing with wholly different sets of facts there can be found phrases apt to deal with those facts which, if taken out of context, could impair the clarity of the position. The relevant law is compactly stated in the Judgment of Lord Evershed, Master of the Rolls in ( Trevett -v- Lee 1955 1 W.L.R. p.113, at p.117) where he said: "The law as regards obstruction to highways is conveniently stated in a passage in Salmond on Torts, 13th edition, page 103: 'A nuisance to a highway consists either in obstructing it or in rendering it dangerous'. Then a numbef of examples are given which seem to me to show that prima facie at any rate when you put an obstruction to a highway you mean something which permanently or temporarily removes the whole or part of the highway from the public use altogether. The phrase there quoted from the 13th edition of Salmond on Torts is again to be found in the current 15th edition at page 106, with a footnote accurately referring to the fact that it had been approved by Lord Evershed.
Next one can find in the judgment of Lord Denning, Master of the Rolls, in the unreported case of Morton -v- Wheeler (No. 33 in the Court of Appeal volume for 1950) a statement which is relevant, though the case itself was concerned with danger arising from some "sharp, fearsome-looking spikes" bordering the highway. There Lord Denning clearly recognised the existence of these two categories of nuisance affecting a highway when he said: "As all lawyers know, the tort of public nuisance is a curious mixture. It covers a multitude of sins. We are concerned to-day with only one of them, namely, a danger in or adjoining a highway. This isdifferent. I think. from an obstruction in the highway. If a man wrongfully obstructs a highway. or makes it less commodious for others (without making it dangerous) he is guilty of a public nuisance because he interferes with the right of the public to pass along it freely." Then a little later he said: "Danger stands, however, on a different footing from obstruction."
When looking at authorities concerned with highway nuisar it is important to remember that there are...
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