Rider v Rider
|England & Wales
|LORD JUSTICE SACHS,LORD JUSTICE KARMINSKI,LORD JUSTICE LAWTON
|24 November 1972
| EWCA Civ J1124-2
|Judgment citation (vLex)
| EWCA Civ J1124-1
|24 November 1972
|Court of Appeal (Civil Division)
 EWCA Civ J1124-1
Lord Justice Sachs
Lord Justice Karminski and
Lord Justice Lawton.
In The Supreme Court of Judicature
Court of Appeal
(Appeal of 2nd Defendants and Third Party from Order of Mr. Justice Stirling at Winchester, 10th March, 1972.)
MR. P. BENNETT. Q.C., and MR. A.R. TYRRELL, (instructed by Messrs. J.E. Baring & Co., Agents for Messrs. Bernard Chill & Axtell of Southampton) appeared on behalf of the Appellants (2nd Defendants and Third Party).
MR. MICHAEL TURNER, (instructed by Messrs. Woodford & Ackroyd of Southampton) appeared on behalf of the Respondent (1st Defendant)
This is an appeal from a Judgment of Mr. Justice Stirling given at Winchester Crown Court on the 9th February of this year. The action was one for personal injuries sustained on the 27th November, 1969 in a road accident which occurred in Rownhams Lane, near Southampton. The plaintiff, who lived at Rownhams, was a passenger in a 1100 Austin saloon being driven towards Southampton at 7.30 p. m. - when it was, of course, dark. The car was being driven by her husband, Mr. Rider, when at a point about half a mile from home it came into collision with a Dormobile van coming in the opposite direction. The driver of the Dormobile van being in no way to blame, the plaintiff started proceedings first against, her husband, who remembered nothing of the accident, and then, in view of the defence filed on his behalf, added Southampton Corporation as 2nd Defendants, alleging that a cause of the accident was that Corporation's failure to keep Rownhams Lane in a proper state of repair.
At the time when the action came to trial agreement had been reached between all parties on certain points: first, that the damages suffered by Mrs. Rider should be assessed at £8,500; next that the plaintiff was entitled to recover against one or other of the two defendants; and thus that the real issue as to liability lay between those two defendants. It was further common ground that in those circumstances the plaintiff need take no further part in the trial; and she did not. At the conclusion of a three-day hearing the learned trial judge held both defendants liable, placing two-thirds of the responsibility on the Corporation and one-third on Mr. Rider.
The Corporation now appeals, contending that it was under no liability at all, and alternatively that the apportionment was erroneous, submitting that they were the least blameworthy of thetwo parties. In this court again the plaintiff has not been represented.
At the outset it is necessary to state the characteristics of Rownhams Lane, the nature of the traffic which used it in November, 1969, and the general state of its repair. Rownhams Lane went southwards from Rownhams towards Southampton, which was only a few miles away. It had originally been a truly country lane, winding its narrow way between villages. As time went on, however, whilst it retained its rural aspect, it became more and more used by motor traffic. Responsibility for its maintenance was taken over by the Corporation about 1964. Well before 1969 it had become an escape route for those who found the A27 and A3057 roads from Romsey to Southampton over-filled. "A traffic jam avoider" it was called by a police officer, and a "secondary through route" by an officer of the Corporation. As a result, it was regularly used by vehicles of all descriptions - cars, lorries, farm tractors and so forth. At times the traffic was sufficiently heavy to be referred to as a. procession of vehicles.
All this was fully known to the Corporation. Yet this lane remained not only winding, but narrow: the width of tarmac shown on the plan put in evidence ranged from 10'9" to 17' - it was less than 14' in more than one place. The edges led on to grass or mud verges, and those verges were in places below the level of the tarmac - a fact that in the above circumstances made adequate support essential for keeping the edges in repair. The road was, however, described by an officer of the Corporation as having "no real foundation". In particular, it had no support at the edges. As it was necessary for vehicles passing each other to hug these unsupported edges, chunks were broken off. Up to 18 inches was at some spots bitten off the edges. In the result,they became uneven, with gaps just where the wheels of vehicles would pass. Moreover, they could vary in their state as lorries passed over them each day. In addition, there were some potholes more towards the centre of the road. The nearside edge going south, as Mr. Rider went, had the worst of the two edges, and that edge was particularly bad at a bend described as "bad" and "sharp" round which Mr. Rider went immediately before the accident.
This lane was described by more than one witness, including a police officer assessed as "impressively experienced", as the worst conditioned lane in the area. No steps had been taken to bring its repair up to anything like the standard required for a secondary main route. On the contrary, during a number of months before the accident its condition had been allowed to grow, if anything, worse. In this behalf it is to be observed that some time before the accident, presumably towards tine end of 1968, a decision had been taken to provide another road, to be known as Spine Road, to take through traffic from Romsey to Southampton, and when that was available to close Rownhams Lane so that it became in effect a cul de sac. One of the principal witnesses for the Corporation said this as to what happened after the decision to provide another road had been taken: "Well, since Rownhams Lane was only recently brought into the City of Southampton boundary, or included in the City of Southampton, and since this area was only brought into Southampton to enable the development in this area to take place, and also it was known at that time that the Spine Road would be constructed, I would say that that was every reason why no work should have been carried out to Rownhams Lane in the form of improvement or widening." Not only was no improvement mad, but it was shown that over the sixmonths before the accident there is no record of any serious work of repair to the lane, though no doubt sometimes half an hour's casual patching may well have been done.
That then was the character arid state of Rownhams Lane down which Mr. Rider was driving when on coming round this sharp bend his car went out of control and swung across into the path of the oncoming Dormobile van. Up to 40 feet before that happened the Austin car had been seen by the van driver to be coming "quite correctly" towards him.
In that set of circumstances the learned trial judge proceeded in correct sequence to consider successively the four relevant issues. (1) Was the loss of control of the Austin car due to Rownhams Lane's state of disrepair? (2) If so, was that state such as to constitute an actionable breach of the Corporation's duty as a highway authority to maintain and repair the lane? (3) If so, had the Corporation established the statutory defence provided for highway authorities by Section 1 (2) and (3) of the Highways (Miscellaneous Provisions) Act 1961? (4) Had negligence on the part of Mr. Rider contributed to the accident?
As regards the first of those issues, the learned trial judge had to decide between two rival contentions put before him. For the Corporation it was put that the way in which the Austin car swung across the road was simply due to an over-correction of a tall skid caused by the speed at which that car was being driven, and was not to any material degree caused by the disrepair. For Mr. Rider it was contended that the swing was of quite a different type, and in all probability caused by one of the nearside wheels going into an indentation in the edge of the lane, and that thus the swing was caused by the state of disrepair. In support ofthese contentions a considerable amount of evidence was tendered, aided by demonstrations with models and by references to the ultimate position of two vehicles. The learned trial Judge, after carefully sifting the material, found as a fact that the swing was due to the disrepair. In this court Mr. Bennett at one stage commenced to challenge that finding, but later resiled from that course. The learned trial judge's finding was indeed in practice unassailable in this court. So the first issue stands resolved in favour of Mr. Rider.
I now turn to the second issue - whether the state of disrepair of the lane was such as to constitute an actionable bleach of the Corporation's duty. In the instant appeal this has been the crucial issue, because Mr. Bennett felt unable to contend that if that issue was resolved against the Corporation they could then successfully resort to the statutory defence provided by Section 1 (2) and (3) of the 1961 Act, where the highway authority can prove it had taken appropriate care to secure that the highway was not dangerous to traffic.
The duty of the Corporation to road users was considered at first instance and in this court on the basis that it arises under Section 44 of the Highways Act 1959. This imposes on the highway authority " a duty to maintain the highway" - a duty so defined in Section 291 (1) as to include a duty to keep in repair. It is accordingly unnecessary in this case to examine whether there is also a collateral duty at Common Law.
The origin and nature of that statutory duty was examined in this court in . It was there decided that had Section 1 (1) of the 1961 Act (which absolished the rule of law absolving highway authorities from liability for non-feasance) stood alone, "aplaintiff who proved in a civil action...
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