Lincoln v Hayman

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE WALLER,LORD JUSTICE DUNN,SIR DAVID CAIRNS
Judgment Date12 February 1982
Judgment citation (vLex)[1982] EWCA Civ J0212-2
Docket Number82/0057
Date12 February 1982

[1982] EWCA Civ J0212-2

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL

ON APPEAL FROM

THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Before:

Lord Justice Waller

Lord Justice Dunn

Sir David Cairns

82/0057

1977 L No 71

Lincoln
and
Hayman & Another

MR W. CROWTHER, Q.C. and MR S. ARCHER (for MR A. HETHERINGTON) (instructed by Messrs Hall Clark) appeared on behalf of the Appellant.

MR R. CROXON (instructed by Messrs Gepp & Sons) appeared on behalf of the Respondent.

LORD JUSTICE WALLER
1

I will ask Lord Justice Dunn to deliver the first Judgment.

LORD JUSTICE DUNN
2

This is an appeal by the Second Defendants from a Judgment of Judge Tibber sitting as a Deputy High Court Judge, whereby on the 21st July 1980 he found the First Defendant, who at the material time was employed by the Second Defendant, wholly to blame for the serious injuries sustained by the Plaintiff in a collision between two lorries which occurred on the 7th April 1976 in a country road called Chequers Road near Romford in Essex.

3

The collision occured a few yards to the north of a bridge which carried the road over a stream at a point where the road ran straight for some distance on either side of the bridge. The road ran down to the bridge from each side. At the point of impact the road was 15 feet wide with a broken white line down the centre. The Plaintiff was driving an unladen Bedford lorry weighing about 2 1/2 tons and 7 ft 6 in. wide. The First Defendant was driving the Second Defendant's laden Leyland lorry, weighing 14 tons and 8 ft. wide. Therefore it was impossible for the two vehicles to pass safely without one or both of them slowing down if not stopping, and going on to the grass verge, which at the point of impact extended some 4 feet on each side of the road. The bridge itself was protected by wooden rails along each side of the verge of the road. The collision occurred at about 11.40 a.m. and the surface of the road was wet.

4

The Plaintiff and the Defendant both gave very different accounts of the collision. The Plaintiff said that he was driving south towards the bridge, and when he was on the brow of the hill going down to the dip he saw the yellow cab of the Defendant's lorry coming fairly fast the other side of the bridge and towards him. He reduced his speed to about 10 or 15 m.p.h. as he went down the hill. While descending the hill a blue Granada, going very fast, overtook him. The Plaintiff slowed still more because he was a bit worried about the speed of the Defendant's lorry. He saw the lorry cross the bridge. He saw "a cab on top of my cab" he felt a bump and remembered no more.

5

The Defendant like the Plaintiff knew the road well. He also saw the lorry descending the hill opposite and he started to slow down because he knew that two vehicles could not pass on the bridge. He got to the bridge first, his speed being 20 to 25 m.p.h. and braking. As he was at the bridge first he crossed it and as he went over he noticed the back of the Plaintiff's lorry snaking or jumping about. The driver, he said, did not appear to be in control. So the First Defendant drove on to the grass verge on his nearside. Both his nearside wheels were about 3 feet on to the grass verge. The Plaintiff's lorry was on its correct side of the road, with its back jumping and as it got close to the Defendant the front shot across the white line and "we hit head on".

6

The result of the collision was that the Plaintiff's lorry was spun round in front of the Defendant ending up with its front wheels on the grass verge and slewed almost broadside across the road. The First Defendant said there had been no change in the Plaintiff's speed from the time he first saw him to the time of the impact and he was not, as the Plaintiff said he was, virtually stationary. The Defendant said that at impact his nearside wheels were on the grass verge, his offside was about 4 feet from the white line and there was plenty of room for the Plaintiff to pass. Although his front wheels after the impact were on a hard right lock, he had not put them there. The impact had broken a track-rod and slewed the wheels round.

7

There was what the Judge called "a third version" of the accident. It was contained in statement which the Plaintiff made to the Police on the 3rd May 1976. It was very different from the Plaintiff's account in Court, in that the overtaking car in the statement given to the Police played an important part. According to the statement the car cut in front of the Plaintiff while he was descending the hill and after the Defendant's lorry had crossed the bridge.

8

Immediately after the accident the Police and a press photographer called Mr Squires arrived on the scene. The Plaintiff had to be cut out of his cab, and the road was blocked for over 1 hour. During that time photographs were taken which show the position of the two vehicles, and the sketch plan was made by a police constable showing those positions and certain wheel marks on the road and the grass verges.

9

It is true as Mr Croxon pointed out that the Judge found that the probabilities were that the accident happened as the Plaintiff said it did, and Mr Croxon said that that finding must be taken to include the Plaintiff's evidence that he was stationary or near stationary at the moment of impact, and that this Court should not disturb the Judge's finding of fact. But the Judge made no express finding as to the Plaintiff's lorry being stationary, and the Plaintiff's evidence as to that was by no means clear.

10

The Judge did not in terms prefer the evidence of the Plaintiff to that of the Defendant. Indeed he rejected the evidence of the Plaintiff that the nearside wheels of his lorry were 2 feet on to the grass verge immediately before the collision. The Judge drew inferences from the marks on the road, and held that those inferences were consistent with the Plaintiff's account and inconsistent with the Defendant's. He rejected the evidence of the police constable that the position of the front wheels of the Defendant's lorry as shown in the photographs was caused by the force of the collision having broken the track-rod, and so locking the wheels in that position, and held that the First Defendant had driven the lorry off the grass verge by turning the wheels sharply to the right. This finding was not sought to be supported on behalf of the Plaintiff in this Court, and it was accepted that the police constable was right in saying that the front wheels were locked in the position shown in the photograph by the force of the collision, which not only broke the track-rod but also pushed the wheels back. The Judge further held that the Defendant's account of the Plaintiff's driving was improbable. In the result he held the accident was caused by an error of judgment by the First Defendant in driving off the grass verge and collidng with the Plaintiff's lorry.

11

If the Judge bad made express findings of the primary facts based on the demeanour of the witnesses, this Court would have been slow to interfere. But where as here the Judge's reasoning was based on inferences from plans and photographs, then this Court is in as good a position as the Judge to draw its own inferences from the undisputed primary material. The first thing that strikes me about the Judgment is that the Judge made no finding as to the position in the road of the point of impact, whether it was on the Defendant's side or the Plaintiff's side. This is an essential finding in a case of this kind. The photographs show that after the accident the offside front wheel of the Defendant's lorry was just on his side of the white line, with the lorry at an angle with its nearside rear wheel on the grass verge. This is supported by the sketch plan which shows a scrub mark running back 6 feet from the offside front wheel of the First Defendant's lorry and parallel to the white line and also on the First Defendant's side of it. It was accepted by Mr Croxon that the point of impact must have been at the left-hand end of the scrub mark as one looks at it on the plan, and that the track-rod having been broken by the force of the collision, the lorry must have slid forward those 6 feet with its front wheels locked at an angle to the right. Although the plan must be regarded with caution because it is not to scale and the Defendant's lorry was in fact wider in relation to the road than is shown on the plan, and also the angle of the lorry may not be accurate, I agree with Mr Crowther that the photographs and the sketch show clearly that the Defendant's lorry was on the nearside of the road at the point of impact, and that there is no evidence that he was ever across the white line. The lorry cannot in the nature of things have at any time been nearer the white line that it appears in the photographs taken after the collision.

12

It follows that the Plaintiff's lorry must have been over the white line, and having regard to the damage to its radiator, which is shown on the photographs, there must have been an appreciable overlap between the fronts of the two vehicles. The photographs of damage to the Plaintiff's vehicle are inconsistent with a glancing blow. All this to my mind constitutes prima facie evidence of negligence by the Plaintiff.

13

In the absence of a finding by the Judge that the Plaintiff was stationary at the time of the accident I think the probability is that he was not. He did not suggest that he was in his statement to the police four weeks after the accident, and the highest he put it in evidence was that he could have stopped, rather as an afterthought. Admittedly he said he slowed down, but the width of the lorry was such that unless he was on the...

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