Patricia Harris (Administratrix of the Estate of Patrick Albert Harris, deceased) (Responent (Plaintiff) Mrs. Anne Chalkin (Formerly Anne Longman) (Appellant (Defendant)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEPHENSON,LORD JUSTICE DUNN,SIR DAVID CAIRNS |
| Judgment Date | 09 May 1980 |
| Judgment citation (vLex) | [1980] EWCA Civ J0509-4 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 May 1980 |
| Docket Number | 1977 H 635 |
[1980] EWCA Civ J0509-4
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the High Court of Justice
Queen's Bench Division
Lord Justice Stephenson
Lord Justice Dunn
and
Sir David Cairns
MR. M. L. T. HARVEY (instructed by Messrs. Hewitt Woollacott & Chown) appeared on behalf of the Appellant (Defendant).
MR. I. T. R. DAVIDSON, QC. and MR. B. J. SEFI. (instructed by Messrs. Marcan & Dean, London agents for Messrs. E. T. Ray & Co.) appeared on behalf of the Respondent (Plaintiff).
I will ask Lord Justice Dunn to give the first judgment.
This is an appeal from a judgment of Mr. Justice Woolf given on 29th June 1979 whereby he found the appellant two-thirds to blame for an accident which had occurred on the M1 motorway on 25th November 1975 causing the death of the respondent's husband who was found one-third to blame for the accident. The learned judge awarded the widow just over £45,000 damages and interest. Both parties contest the apportionment, the appellant saying that the deceased should have been held more to blame than the appellant; the respondent saying that the deceased should not have been held to blame at all. The appellant alleges that the total amount of damages was excessive and that the judge erred in law in his approach to the assessment of damages.
Before dealing with the facts of the appeal there is an important question of practice to which I desire to refer. This was a case in which there had been a payment into court. It was mentioned, as it always is, in the course of the discussion after judgment. That discussion was transcribed in full and the transcription was included in the papers which were put before this court. The discussion revealed not only the fact that there had been a payment in, but also its precise amount. That is in clear breach of the rules of the Supreme Court. Order 59 r. 12 A, so far as it is material, provides:
"Where -
(a) any question on an appeal in an action for damages … relates to liability for the debt, … or to the. amount thereof, and
(b) money was paid into court in the proceedings in the court below before judgment, neither the fact of the payment nor the amount thereof shall be stated in the notice of appeal or the respondent's notice or in any supplementary notice or be communicated to the Court of Appeal until all such questions have been decided."
This is the third consecutive case involving damages in which both the fact and the amount of a payment into court had been communicated to this division of this Court although differently constituted. In fact we continued with the appeal in this case with the concurrence of both counsel, only one of our number having seen the amount of the payment into court, but communication, particularly of the amount of the payment into court, may cause great embarrassment to the court and in future cases it may be that the court will be obliged to adjourn the appeal on terms that the appellant's solicitors who have the conduct of the appeal, pay the costs thrown away, personally. We were told that the appellant's solicitors in this case had no idea of the rule. Speaking for myself I find that quite astonishing. The rule has been in existence since 1976, the solicitors concerned are extremely experienced solicitors in this type of litigation and there is, I understand, a notice in the Lord Justices' clerks' room where the appellate papers are lodged - a large notice - drawing attention to this particular rule and to the fact that neither the fact of a payment in nor its amount shall be communicated to the court. It is important that this rule should be observed by all solicitors practising in this jurisdiction.
I turn now to consider the facts of this particular accident. Shortly after midday on the day in question, theappellant was driving on the southbound carriageway of the ill a few miles north of Newport Pagnell Service Station. She was driving in the slow lane at about 60 miles an hour. It was, or had been, raining. The surface of the road was wet. For reasons not fully explained, but which the judge held constituted negligence, the car got out of control, it skidded right across the southbound carriageway, spinning round through an angle of 360° as it did so, and ended up in the fast lane facing south. The appellant had the impression that there had been some tyre failure, but there was no evidence of that when the car was subsequently inspected and it is a fair reading of the judge's judgment taken as a whole that he came to the conclusion that either there had been some momentary loss of attention by the appellant or that she had applied her brakes too fiercely, having regard to the speed at which she was travelling and the condition of the road and that that was what caused the car to go out of control. It stopped in the fast lane. Either the engine was still running, or if it was not still running it seems probable that she started it up again. At any rate there was no evidence that the car was in any way immobilised. She could quite well have driven it back on to the hard shoulder, at that stage, but in fact she got out of the car while it was still stationary in the fast lane and inspected the tyres to see if there was any damage and she then went on to the central reservation. While she was on the central reservation she was passed by a car driven by a Mr. Price who saw her. He drove on to the next police telephone and told the police that there was a car apparently broken down in the fast lane. The police naturally assumed that the car could not be moved and they told Mr. Price toget the driver away from the car into a position in which she would have been safer. Mr. Price walked back down the hard shoulder. By the time he got back the appellant was back in the car and he beckoned her away from the car and across to the hard shoulder. So she got out of the car and walked across the motorway on to the hard shoulder. At that time traffic was intermittent. Several vehicles passed the stationary car, some of them with difficulty, and at about 12.40 pm the deceased, driving his Simca, came along in the fast lane also travelling in a southerly direction. There was with him a hitch-hiker, Mr. Brewer, who was not called as a witness because he could not be traced. His statement was put in under the Civil Evidence Act. The gist of what he said was that they were travelling in the fast lane at about 50 to 55 miles an hour and 15 or 20 yards behind another car which suddenly swerved to its left to avoid the appellant's car. The deceased braked hard but he was unable to avoid the accident, according to Mr. Brewer, and he struck the appellant's car on the offside of his car.
It was strongly urged on behalf of the appellant that, in those circumstances there was some prima facie rule or presumption that the driver of a car who ran into the back of a stationary car was more to blame than the person responsible for leaving the stationary car in the position in which it was, and in support of that counsel relied on a case in this court, Rouse v. Squires 1973 QB 889. That was also a case of an accident on a motorway - in fact, on this same motorway, the Ml.
What had happened was that on a frosty December night an articulated lorry had skidded into a jack-knife position,obstructing the nearside and centre lanes of one of the carriageways. A car driving in the centre lane collided with that lorry and stopped with its rear lights on. Another - lorry driver who had been following, parked in the nearside lane with his headlights on so as to illuminate the two stationary vehicles and five or ten minutes later the defendant, driving along in the same direction at about 50 miles an hour with dipped headlights came within view of the collision about 400 yards away, he did rot realise the vehicles were stationary until he was about 150 yards from them, he then applied his brakes, was unable to stop, collided with the parked lorry which was pushed forward and killed a man who was assisting at the scene of the collision. The judge found that in those circumstances the defendant, the driver of the oncoming lorry, had driven so extremely negligently that he was wholly to blame for the accident. This court reversed that decision and found that the driver of the lorry which had broken down and had jack-knifed and come to a halt obstructing those two lanes, was 25 per cent to blame. It is interesting to observe that Lord Justice Cairns - at page 898 of the report, said this:
"If a driver so negligently manages his vehicle as to cause it to obstruct the highway and constitute a danger to other road users, including those who are driving too fast or not keeping a proper lookout, but not those who deliberately or recklessly drive into the obstruction, then the first ground of his negligence may be held to have contributed to the causation of an accident of which the immediate cause was the negligent driver's driving of the vehicle, which, because of the presence of the obstruction, collided with it, or with some other vehicle or some other person. Accordingly I would hold in this case that the third party driver's negligence did contribute to the death of Mr. Rouse."
It is plain from a reading of the report that the issue in that case was an issue of causation.
Speaking for myself I do not think that there is any prima facie rule or presumption as to the blameworthiness of the driver of a car who runs into a stationary vehicle. Nor do I think that much, if any, assistance is to be derived from the citation of cases upon negligence on particular facts. It all depends on the facts and circumstances of the...
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