Levine v Morris
|England & Wales
|LORD JUSTICE RUSSELL,LORD JUSTICE SACHS,LORD JUSTICE WIDGERY
|09 October 1969
|Judgment citation (vLex)
| EWCA Civ J1009-2
|Court of Appeal (Civil Division)
|09 October 1969
 EWCA Civ J1009-2
Lord Justice Russell
Lord Justice Sachs and
Lord Justice Widgery
In The Supreme Court of Judicature
Court of Appeal
MR DENNIS BARKER, Q.C. and MR M.A.B. BURKE, (instructed by The Treasury Solicitor) appeared on behalf of the Appellants (Second Defendants).
R. H. TUDOR EVANS, Q.C. and MR IAN BLACK, (instructed by Messrs. Freeland & Passy) appeared on behalf of the Respondent (First Defendant).
I will ask Lord Justice Sachs to deliver the first judgment.
These cross appeals are from a judgment of Mr. Justice Cumming-Bruce at Warwick Assizes on the 9th December last year in consolidated actions brought against the two defendants by the administrators of the estate of Emmanuel Stewart Levine deceased and by Mrs. Levine, his mother, respectively. The deceased, aged 20, and his mother were passengers in a Vauxhall car which on the 5th April, 1966 was being driven southwards by the first defendant (to whom I will refer as "the driver") at a considerable speed in heavy rain along a dual carriageway the A452, towards Stonebridge Roundabout. The car skidded, went out of control, hit the offside kerb and then shot back across the 24 foot carriageway and some 100 feet later, having gone off that carriageway, crashed into the massive concrete columns which support a great road sign erected by the second defendants (to whom I will refer as "the Ministry") 4 feet from the nearside edge of that carriageway. Mr. Emmanuel Levine was killed and Mrs. Levine was injured.
The learned trial Judge, having found that both defendants were liable in negligence, for reasons to which reference will be made in due course, apportioned the blame as at 75 per cent. against the driver, who was found to have driven without due skill, and at 25 per cent, against the Ministry, who were found negligent the siting of the sign. The Ministry appeal on liability. The driver, in this court does not dispute liability, but cross-appeals on the apportionment and contends that it should have been fifty-fifty. In those circumstances, the plaintiffs are not represented in this court.
The material part of the southbound carriageway of the A452 has a down gradient of 1 in 19. There is then a slight right-hand bend and it crosses Hollywell Brook, where alone it is bordered by kerbs and it then goes up to a rise leading towards the roundabout. Just about at the end of the bend and towards therise was situated this large sign. The accident occurred after the driver had quite properly passed a lorry, was returning to his nearside lane and was straightening up a little before coming to the bridge that crosses Hollywell Brook.
The case against the driver was that he negligently got into a skid when driving at about 50 m.p.h. in heavy rain, through returning to the nearside lane and straightening out in the way that he did. I pause to emphasise a point of some importance. When one looks at the photographs and at the plan the bend appears very slight, and certainly not one that would strike an average driver as a bend dangerous to take at speed. Indeed, at one part of his judgment the learned trial Judge said this: "In December, 1965 this stretch of road was still apparently innocent to the layman, innocent of any propensity to cause loss of control…" The difficulty requiring skilful judgment occurred where the road had unfortunately been constructed to pre-1961 standards and had a design speed lower than that which would have obtained had it been constructed two or three years later.
It is in those circumstances that the judgment touching the liability of the driver reads: "I hold that it is an inescapable inference that Mr. Morris failed to attain the degree of skill and care which the law requires." This appears to refer back to what he said earlier when at page 9 at "A" he referred "to the inference that the plaintiff's skid was because at the speed which he had elcted to go he misjudged the degree of correction necessary as a result of his manoeuvre in trying to return gradually to the nearside and then negotiate the right hand bend ahead of him." (It is to be noted that the speed of the driver was found to be in the 50 m.p.h. area and was thus not in itself an excessive speed, as 70 m.p.h. was said by one of the Ministry witnesses to be the speed that other cars were going in that rain, and moreover the speed at which he himself was wont to go at times in rain.) Moreover, later in the judgment one finds this further passage: "…it is only because unfortunatelyMr. Morris was not sufficiently skilful at the relevant point that he created the situation in which the vehicle that he was driving, trying to control, left the carriageway altogether."
As I interpret those passages, in the light of the evidence on the question of road design and conditions (as to which more will have to be said later), the driver's error was only marginally on the wrong side of the border-line between error of judgment and negligence. There is no suggestion that he was driving negligently: indeed, his mistake was of a type which motorists are prone to make unless they are very experienced; and, moreover, the accident was one which might well not have occurred on that road had it had an up-to-date design.
Turning now to the case against the Ministry, the first defendant raises two main contentions: first that the driver's loss of control was due to negligence in the design of the road; and secondly, that the damage flowing from the skid was greatly increased owing to the negligence of the Ministry in siting that massive sign there. These allegations fell to be assessed in the light of the sequence of events relating to the construction of the dual carriageway and the erection of the sign. The design scheme for the carriageway was formulated in 1959. The final plans were approved in March, 1961. Then in June, 1961 there was issued a Memorandum on Road Design (No. 780), the recommendations in which were not incorporated in the scheme for construction. The contracts were placed in 1962, and the work on the scheme commenced in December, 1962. The dual carriageway was opened in June, 1964. The relevant sign was erected in December, 1965, under the powers given to the Ministry by Section 52 of the Road Traffic Act 1959 (now superseded by a parallel section).
As regards road design, the plaintiffs and first defendant alleged a number offeults. The most important was that the design speed should have been 70 m.p.h., as recommended for such roads in kemorandum No. 780,and not 60 m.p.h., which was in fact the design speed adopted for the scheme. Upon the basis of thatcontention the bend should have had a greater radius and there banking should have been more pronounced and efficient. There are also allegations, not stemming from the contents of Memorandum No. 780, against the nature of the surface and against the drainage.
In support of their case against the Ministry the plaintiffs relied on a number of matters. They relied on the fact of three other accidents having occurred on the short stretch - one of which was fatal but took place after the 5th April, 1966; on the fact that other motorists gave evidence as to a degree of tail wobble, one saying that he had had it himself at 40 m.p.h. and that he had seen others have it at 50 m.p.h on the evidence of design specialists; and on correspondence between the district surveyor and the county surveyor in 1966 which strongly criticised the siting of the sign, and to which further reference will be made. They relied also on the alterations made after the accident to the line of the road and the banking; and as regards the sign they relied on the fact that in consequence of the correspondence to which I have referred it was moved nearer to the Stonebridge Roundabout to an equally visible position.
The first branch of the case against the Ministry, that relating to negligence in road design, was rejected in the main, because, while the design did not conform to the standards published In June, 1961, the learned trial Judge said: "I accept that it was unreasonable to hold up the works in order to adjust the design to the standard recommended by Memorandum 780." The fact remains, however, that it was common ground that, though the carriageway conformed to the minimum standard (as opposed to the desirable standard) for a 60 m.p.h. road design, it was substandard in relation to the minimum requirements of the 70 m.p.h. road design set out in Memorandum 780. Thus, when turning to the second contention of the plaintiffs on which the trial Judgefound against the Ministry, it is important at the outset to note that by December, 1965, when this sign was erected, the authorities hadhad ample opportunity to digest Memorandum 780 and to appreciate the risks involved by the design of this particular stretch falling below the 70 m.p.h. standard.
The first issue for consideration as regards the siting of the sign is this: Were the Ministry when selecting a site under any duty vis-a-vis any of the motorists who might shoot off the carriageway to take reasonable care not to impose unnecessary hazards to their safety. This was a hotly contested issue before the learned trial Judge and again in this court. It was contended that the Ministry were under no duty at all to any such motorists. It was asserted that the Ministry had an absolute and paramount duty to erect a clearly visible sign, and that so long as this duty was complied with they had no duty at all to consider hazards to any such motorists, not even if there existed two potential positions for the sign where the visibility was equal, but one obviously involved materially more such hazards...
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