Michael Smithson v Bradley Lynn
| Jurisdiction | England & Wales |
| Judge | Gosnell |
| Judgment Date | 16 October 2020 |
| Neutral Citation | [2020] EWHC 2517 (QB) |
| Docket Number | Case No: E90LV053 |
| Date | 16 October 2020 |
| Court | Queen's Bench Division |
[2020] EWHC 2517 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
LEEDS DISTRICT REGISTRY
The Combined Court Centre
Oxford Row, Leeds
HIS HONOUR JUDGE Gosnell
(sitting as a Judge of the High Court)
Case No: E90LV053
and
Mr Michael Rawlinson QC (instructed by BLM LLP) for the First Defendant
Mr Nigel Lewers (instructed by DWF LLP) for the Second Defendant
Hearing dates: 14 th – 16 th September 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
HIS HONOUR JUDGE Gosnell
Bundle References shall be shown as: Bundle Number/Divider Number/Page Number
Introduction
This claim arises out of a road traffic accident which occurred on 22 nd November 2015. The original Claimant Mr Smithson was a passenger in a Fiat Punto motor vehicle driven by Mr Lynn, the First Defendant. The accident happened when the First Defendant lost control of his vehicle and collided with a tree on Rascelf Road between Easingwold and Rascelf, North Yorkshire, he would say due to the presence of ice on the road. The First Defendant blamed the Second Defendant for failing to prevent the formation of this ice on the road and issued Part 20 proceedings against it for a contribution/ indemnity. The Claimant in turn added the Second Defendant to the claim. Relatively shortly before trial the First Defendant settled the Claimant's claim for an agreed sum and so this trial is solely about whether the First Defendant is entitled to an indemnity or contribution from the Second Defendant. In this Judgment I will describe the Second Defendant as such rather than as Third Party to the additional claim.
Over the course of two days I heard oral evidence from seven lay witnesses and two expert witnesses. I also read the reports of two further expert witnesses who in the end were not called to give evidence due to very sensible concessions being made by both trial counsel. It is accepted by both parties that the essential cause of the accident was the First Defendant's vehicle skidding on ice and losing control (although the Second Defendant contends that the First Defendant was also negligent). It is also accepted that overnight on 21 st /22 nd November 2015 the Second Defendant received two requests from police officers to salt Rascelf Road (the Second Defendant would submit at different locations to the index accident). The Second Defendant refused to arrange any ad hoc or spot gritting of Rascelf Road before the accident notwithstanding these requests. The first issue is whether that refusal amounted to a breach of statutory duty by the Second Defendant. If the answer to the first question is in the affirmative the second issue is whether the First Defendant is entitled to a complete indemnity or in the alternative a contribution in a proportion to be fixed by the court.
The factual background to the accident
The accident happened on Rascelf Road. Rascelf Road is a country road which connects the villages of Easingwold and Rascelf in North Yorkshire. It is approximately three miles long and runs from Easingwold in the east to Rascelf in the west. On the night of 21 st / 22 nd November 2015 there were five incidents which occurred on Rascelf Road. The last of those incidents was the one which involved injury to the Claimant (“the index accident”).
A photograph of the relevant part of Rascelf Road appears below
The First Incident took place at around 16:59 hours on 21 st November 2015. According to North Yorkshire Police Storm Report (the police database) a reporting party reported “treacherous road conditions between Easingwold and the bridge over the A19.” She had “ gone round a corner and was hardly able to stop as she came across a road traffic collision between a car and two motorbikes” [7/ 5/1956]. The Police Control Room contacted the Second Defendant's out of hours service known Selby Swing Bridge to request gritting of the road. There is no record of what Selby Swing Bridge were told or what they said to the Second Defendant's Duty Manager Jayne Charlton, but she made a written record in a diary which read:
“1710 Swingbridge range report road to Rascelf was icy. I responded to say not a P1 but P1's commencing at 1800. NFA (no report of accident or incidents” [1/13/168]
This decision was then reflected in the Storm Report as “ they will not grit this road as it is not a priority route” [7/ 5/1957]. Given the location described this accident did not occur at the same location as the index accident which was west of the bridge over the A19.
The Second Incident took place around 18:40 hours on 21 st November 2015. This was a road traffic accident which occurred on Rascelf Road near to the garden centre known as Bata. This is just to the east of the A19. The vehicles were recovered by local farmers before the police arrived. The Storm Report however records “Road is icy, req Highways called. However this has not been done as their response is always that they have a standard route and they will cover those” [7/5/1961]
The Third Incident took place at around 20:06 hours and the Storm Report records:
“Caller reports a Land Rover on its Side in a Ditch…between Rascelf and Easingwold. Location is half way between the two locations…Are also a number of skidmarks on the road nearby as if another vehicle may have been involved …its very very slippery that road at the minute…..there's no salt at all and its minus 1….. . This is the 2 nd time vehicle has gone off the road tonight in this area…. Give location as half a mile from the Bridge that runs over the A19…. Will put signs out advising drivers to slow….Signs are out”
The latter entries were made as a result of a conversation with the officer on the scene PCSO Warby. He gave evidence at the trial and was an entirely straightforward individual. He was familiar with the location and said it had occurred on a bend which was the same bend where the index accident occurred about half a mile west of the A19 flyover. He was subsequently asked to provide a plan showing where the accident occurred (Third Incident) which appears at [1/10/83]. He felt the accident had been caused by black ice, so he put two signs (“Police Slow”) at either side of the bend to warn motorists of the potential danger. I am satisfied on balance of probability that Incident Three took place at the same location as the Index Accident.
Incident Four took place at around 22:13 on 21 st November 2015. The relevant entries on the Storm Report are as follows:
“RP has skidded, and his car is in a ditch. Just before Rascelf Village on a bend…. There is another car in a ditch on the opposite side which has ‘Police Aware’ stickers on….RP has skidded on black ice…. Unknown why there is black ice on particular part of road – investigating possibility of water leak…. Will ring Selby Swing with regards to the ice…The road is a complete ice rink – unable to stand – never mind drive on it…..Have contacted Selby Swing they will try to get a gritter out” [7/8/1966–8]
Evidence about this accident was given by PC Groom and PC Hutchinson. They were straightforward witnesses who had a fairly good recollection of the incident they were called out to. It was clear from both witnesses that Incident Four took place on the same bend as Incident Three and the Index Accident. Both officers attended the index accident in addition, so they were well placed to give this evidence. When they arrived there were two vehicles off the road one on each side of the carriageway. One of those two vehicles was likely to be the vehicle left on the scene after the Third Incident. They notified the control room who would have made entries on the Storm Report. PC Groom could not explain why staff at the control room appeared to think that the accident took place in Easingwold rather than west of the A19. They both remembered either placing “Police Slow” signs on the ground either side of the bend or alternatively taking the existing signs and moving them further away from the bend to give more notice to motorists of the hazard. They thought they had put the signs between 20–50 yards further away from the bend. I find as a fact that it is more likely that they moved the signs which had been placed by PCSO Warby rather than used their own signs. The extent of the ice was all across the road more or less right across the bend PC Groom recalled. I find as a fact that Incident Four occurred at the same location as the Index Accident.
There was in fact a transcript of the conversation between the police control room and Selby Swing Bridge. Relevant entries are as follows:
“Police:…We've attended an RTC on Rascelf Road…just before you get into Easingwold…Rascelf Road and Alne Road…we've got quite a large patch of black ice; it is right in front of some residential properties. My officer thinks it is some sort of water leak somewhere but we can't find where……Obviously he is asking if we can ring you to get some gritter or something down there….
Council. Right. Err, hmmm I'll see what they'll do. I don't what they'll do …but I'll ring it into them
Police…Like I say its caused quite a bad accident so…
Council Oh right…Ice over the road due to a …we're presuming …a water….Righteo I'll ring it through to them…” [7:17:2007–2008].
There is no record of what Selby Swing Bridge said to the Duty Manager Jayne Charlton, but she recorded as follows:
“2316 hrs, Call from Swingbridge to say that there was a water burst on Rascelf Road at junc with Alne Road. Police had informed Yorkshire Water. Police request the road to be gritted. I informed Swingbridge that it was...
To continue reading
Request your trial