Knightley v Johns

JurisdictionEngland & Wales
JudgeLORD JUSTICE STEPHENSON,LORD JUSTICE DUNN,SIR DAVID CAIRNS
Judgment Date27 March 1981
Judgment citation (vLex)[1981] EWCA Civ J0327-2
Docket Number81/0149
CourtCourt of Appeal (Civil Division)
Date27 March 1981
Leonard Gordon Knightley
Respondent (Plaintiff)
and
Thomas Johns
Appellant (First Defendant)
Geoffrey Bernard Cotton
(Second Defendant)
The Chief Constable of the West Midlands
Respondent (Third Defendant)
Police Inspector Sommerville
Respondent (Fourth Defendant)

[1981] EWCA Civ J0327-2

Before:

Lord Justice Stephenson

Lord Justice Dunn

and

Sir David Cairns

81/0149

1976 K 05903

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

BIRMINGHAM DISTRICT REGISTRY

Royal Courts of Justice

MR. E. JOHN J. PROSSER, Q.C. and MR. A. NICHOLL (instructed by Messrs Argyle & Sons, solicitors, Tamworth) appeared on behalf of the Respondent (Plaintiff).

MR. MICHAEL WRIGHT, Q.C. and MR. CHAS. DURMAN (instructed by Messrs Kingsley Napley & Company, solicitors, London; agents for Messrs Maurice Putsman & Company, solicitors, Birmingham) appeared on behalf of the Appellant (First Defendant).

MR. J. R. V. McAULAY. Q.C. and MR. J. E. FLETCHER (instructed by Messrs T. H. Ekins, solicitors, Birmingham) appeared on behalf of the Respondents (Third and Fourth Defendants).

LORD JUSTICE STEPHENSON
1

On a Friday evening in October 1974 at about 8.20 in the twilight Police Constable Knightley rode his motor bicycle the wrong way along a tunnel in Birmingham into collision with Mr. Cotton's oncoming motor car. He sued Mr. Cotton for negligence in causing him serious injuries. He also sued Police Inspector Sommerville and the Chief Constable of The West Midlands as the inspector's superior officer for the inspector's negligence in instructing or at the least permitting him to ride the wrong way. But the person he alleged to be first and foremost responsible for his accident and injuries was Mr. Johns, because it was his negligence in overturning his motor car in the tunnel which was the cause of all the trouble.

2

The deputy judge had a hard task, not made easier by the surprising fact that not one of the four defendants gave evidence. Though rightly directing himself that he was therefore entitled to draw adverse inferences where the evidence which was given left him in doubt, he nevertheless acquitted everybody concerned, including Police Constable Knightley himself, of negligence except Mr. Johns, the only defendant whose injuries may have explained his absence from the witness-box. That part of the judge's task was made easier—his finding that Mr. Johns was negligent—because it was conceded at the trial. What remained, however, in dispute at the trial was whether his negligence caused the plaintiff's accident and whether the negligence of the other defendants, or the plaintiff himself, caused or contributed to it. These are the disputed issues raised by Mr. John's appeal to this court and the plaintiff's cross-notice. The Chief Constable and the Inspector have in the course of the appeal been allowed to join Mr. Johns in alleging contributory negligence by the plaintiff.

3

The Queensway tunnel between Suffolk Street and Great Charles Street has four lanes of traffic, two going north and two going south. The southbound tunnel was at the material time closed for maintenance. Both Mr. Johns' accident and the plaintiff's collision with Mr. Cotton's car happened in the northbound tunnel. The carriageway, divided by a broken white line into two lanes, is 22 feet wide. There are narrow footways on each side and emergency telephones on the nearside wall of the left-hand lane, which was called lane 1. The length of the tunnel is a third of a mile. The speed limit, often exceeded, is 40 miles per hour. The tunnel bends more than halfway along to the right, and the bend is so sharp as to be blind. Mr. Johns' car somersaulted and came to rest upside-down with him inside it, blocking the right-hand lane, which was called lane 2, some 440 feet beyond the right-hand bend and about 40 yards from the exit of the tunnel. One or more bodies of his passengers lay injured and unconscious across the central line dividing the two lanes and partly blocking lane 1.

4

A Mr. Williams, driving behind Mr. Johns, stopped and used an emergency telephone to report the accident to the Al Sub-Division Controller's office at Steelhouse Lane Police Station, which appears to have received and communicated the message in a somewhat confused form. The plaintiff on patrol duty picked up on his radio a message from the main force control room in Newtown Street and continued on his motor bicycle to the scene. Seeing the position of Mr. Johns' car and the bodies he rode out of the northern exit into the open so as to be able to radio the force control room for two ambulances and a fire appliance. He then rode back to the scene the wrong way against any traffic that might have been coming north past Mr. Johns' car. There he found about four private cars stationary in lane 1 and behind the overturned car in lane 2 a police panda car and a motor bicycle, shortly to be joined by a fire appliance. At the scene were Inspector Sommerville, a Police Constable and a Woman Police Constable, who had apparently arrived in the panda, and Police Constable Easthope, who had dismounted from the motor cycle. The plaintiff got off his motor cycle with the intention of rendering first aid, when the inspector said to him and Police Constable Easthope, "I have forgotten to close the tunnel; you two go back and do it". Thereupon Police Constable Easthope turned his machine round and without objection from the Inspector drove southwards the 3/10ths of a mile back to the southern entrance to the tunnel—or rather the 4/10ths of a mile to the last point for diverting traffic to the surface road—and the plaintiff, without a word to him or to the inspector, followed him at a distance which he put at 20 yards or 40 feet.

5

Police Constable Easthope hugged his left-hand wall in lane 2, because he thought it easier for drivers approaching in the correct direction to pull to their nearside away from their right-hand bend and safer to try and "tighten the bend". (6A, 46E) The plaintiff went over to his right-hand wall in lane 1 "to get the earliest possible view of anything coming the other way round this blind bend to open the bend (38B). Both rode at a speed of 20 miles per hour, showing main beam headlights and flashing blue lights and sounding two-tone horns. Both had nearly reached the entrance after passing a substantial "tailback" of stationary cars in both lanes when they were confronted by Mr. Cotton's car approaching at 35—40 miles per hour. It swerved to the left to avoid Police Constable Easthope and collided with the plaintiff near the entrance to the tunnel.

6

These are the salient facts, as found by the judge, of this unusual and unlucky accident.

7

I consider first the police action, both of the inspector and the plaintiff and the cases against them before I turn my attention to the case against Mr. Johns, because his liability depends on the nature of what they did. The plaintiff rode the wrong way on instructions from the inspector to close the tunnel. He said that the decision was his (14C), that it was a hair-raising thing to do, exposing him to very considerable risk of an accident, but done of his own volition (16A); placing him and his brother officer in a situation of very great peril (18E), but done to get the tunnel closed as quickly as possible (19H, 21C). He initially considered going the long way round by St. Chad's Circus north of the tunnel and back by the surface road (which could have been done, according to other evidence, in 3 1/2 minutes), but due to the hazardous situation in the tunnel felt that he had no alternative but to ride the wrong way through the tunnel (8A). This northbound tunnel was an arterial road and the situation in it he thought hazardous because he feared that the tailback of oncoming traffic would fill up the carriageway back nearly as far as the bend and further vehicles, perhaps a coach or a tanker, might come round the bend too fast and into the tailback with much more disastrous consequences. He based that fear on his experiences when policing the motorway and on previous accidents in the tunnel, and I do not see how that evidence could be rejected.

8

But in assessing it ho judge could ignore the plaintiff's position as a still serving member of the West Midlands Police Force and his own evidence (4C) that he got off his machine with the intention of rendering first-aid but got no further because of the instruction he received from the inspector. That clearly indicates to me that he thought that the tunnel had been closed until the inspector told him he had forgotten to close it.

9

It was, however, his own decision to open the bend by hugging his right-hand wall in lane 1, though Police Constable Easthope had decided to tighten the bend by hugging his lef-hand wall in lane 2. The judge held that the plaintiff had a good reason to make that decision and so had P.C. Easthope, and I agree with him. But though the matter gave him considerable concern he concluded that though he himself "would most certainly have tucked myself in behind the leading motor cycle, I do not think I can blame an experienced motor cyclist such as the plaintiff for deciding to take the course which he did take" (89BD). Like the judge, I have had some doubt about that. I do not think that the plaintiff was acting unreasonably or negligently in obeying the inspector's orders and riding the wrong way. I do not have to consider whether he would, as he implied, have done the same thing if he had not received that instruction. But I am of opinion that he added to the great and clearly appreciated danger of riding the wrong way by going on to the opposite side to Police Constable Easthope...

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