Rouse v Squires
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUCKLEY,LORD JUSTICE CAIRNS,MR. JUSTICE MACKENNA |
| Judgment Date | 22 March 1973 |
| Judgment citation (vLex) | [1973] EWCA Civ J0322-1 |
| Date | 22 March 1973 |
| Court | Court of Appeal (Civil Division) |
[1973] EWCA Civ J0322-1
In The Supreme Court of Judicature
Court of Appeal
(On appeal from decision of Deputy Judge Norman Richards, Q. C., 20th October, 1972.)
Lord Justice Buckley,
Lord Justice Cairns and
Mr. Justice Mackenna.
MR. S. BROWN, Q. C. and MR. R. CROXON, (instructed by Messrs. White & Co.) appeared on behalf of the Appellant (Defendant).
MR. M. STUART-SMITH, Q. C. and MR. M. TURNER, (instructed by Messrs. L. Bingham & Co.) appeared on behalf of the Respondents (Third Parties).
I will ask Lord Justice Cairns to deliver the first judgment.
On the night of the 23rd December, 1968, an the ill motorway, a multiple accident or series of accidents occurred as a result of which Mr. Rouse was killed. His widow brought an action under the Fatal Accidents Act against the driver of one of the vehicles involved, a Mr. Squires. The action was compromised by the payment of £16,000 and it is accepted that that was a proper settlement. Mr. Squires, however, had taken third party proceedings against F. V. Carroll & Sons Limited. and Mr. Allen, the owners and driver of another vehicle concerned, and he claimed against them indemnity or contribution. That issue was contested, and at the trial before His Honour Judge Norman Richards, sitting as Deputy High Court Judge, it was decided in favour of the Third Parties, Mr. Squires being held solely to blame for the fatal injury.
The Incident occurred at about 10.30 on a frosty night, when Mr. Allen, driving his employers' articulated lorry up the north-bound carriageway of the Ml, for reasons which were not fully explained but which admittedly involved negligence on Mr. Allen's part, lost control of the vehicles it skidded and got into what is called a jack-knife position obstructing the slow and centre lanes of the carriageway. An 1100 motor car travelling on the centre lane of the same carriageway collided with the part of Mr. Allen's vehicle which was in that lane. This car is not relevant to the proceedings except that its rear lights stayed on. After that two lorries, or more, arrived on the scene. It is not clear what the order of their arrival was, and it really does not matter: It can be taken that the next to arrive was thelorry driven by Mr. Rouse. His lorry was not involved in any collision. He saw that there was trouble, got past it, parked his lorry safely on the hard shoulder beyond the scene of the collision and went back to render help. Unfortunately for him, he went and stood in the carriageway somewhere near the jackknifed lorry. Travelling some distance behind Mr. Allen's lorry was another lorry belonging to the same owners driven by a Mr. Franklin. He was sufficiently close to Mr. Allen's lorry to see what happened to that lorry. He pulled up in the nearside lane of the carriageway 15 feet short of the jack-knifed lorry, and he stayed there, leaving his headlights on purposely in order to illuminate the broken-down lorry; his rear lights, of course, also remained on. Finally, along came Mr. Squires driving his employers' lorry. He did not realise when he first came within view of the scene at not less than 400 yards away (he said 500 yards) that there were vehicles ahead which were stationary and did not realise that two lanes of the carriageway were obstructed. He said that it was within 150 yards of the scene that he first realised that a stationary vehicle was present in the nearside lane, and he said that he then braked and moved over to the centre lane. It was not until after that that he realised that that lane also was blocked. He applied his brakes harder, but because of the frosty surface of the road, possibly combined with the nature of the load he was carrying, his lorry skidded. He was not aware that he had collided with any other vehicle, but in fact some part of his lorry - probably towards the rear of the nearside of it - struck against the rear part of Mr. Franklin's lorry and pushed it forward so that it knocked down Mr. Rouse and caused his fatal injuries. After that Mr. Squires'lorry careered across the central reservation and for some distance along the south-bound carriageway until the driver brought it to rest on the central reservation.
Mr. Squires was admittedly negligent. The learned judge held that he was extremely negligent: in driving too fast in frosty conditions - he admitted a speed of 50 m. p. h.; in failing to observe that the vehicles ahead were stationary until he was within 150 yards of them, when he ought to have realised it from at least 400 yards away; in failing to realise when he first saw the lights that there might be a breakdown and that he ought to reduce his speed; and in failing to switch on full headlights when he saw that there was some obstruction ahead.
The learned judge, while finding that Mr. Allen was negligent, reached the conclusion that his negligence was not a cause of Mr. Rouse's injuries. It is convenient to read a part of his judgment in which he set out his reasons for so deciding. He said: "How that what was called the doctrine of lost opportunity is no longer a decisive factor in making liability, where a dangerous act of two or more bodies had, if I may so describe it, set the scene wherein the accident occurred, that does not mean that one who has contributed to the situation, without which the accident would not have occurred, must necessarily bear some blame. As was said by Lord Justice Edmund Davies in Dymond -v- Pearce, which is reported in 1972 1 All England, at page 1142, a case where the circumstances of the accident were very similar to those in this case, sine qua non is not an all-sufficient basis for establishing liability.' As has been said in many cases to which my attention has been called, in arriving at a decision on causation, the proximityof various acts in time and space must be taken into account, and in this the fact that the negligent driver, the third party, caused an obstruction and nuisance on the carriageway, without which the accident would not have occurred, is not in itself an all-sufficient basis for establishing some degree of liability for this accident. The fact that some accident occurred five or ten minutes before, in my judgment, is no more material than if it had happened some hours before. What I have to consider is whether the situation which resulted was really causative of the present accident. If the first accident had occurred so that the obstruction which resulted was unlit or lit only to such an extent, due to atmospheric conditions, that a driver keeping a proper look-out could not take avoiding action in time, as was the case in Harvey -v- The Road Haulage Executive, which is reported in 1952 1 King's Bench, at page 120, other considerations might apply, but here I am satisfied that the scene of the obstruction was adequately lighted to warn any driver coming along and keeping a proper look-out that there was or might be trouble ahead and I repeat that the driver, on his own evidence, was able to see a situation which should have put him on his guard when he was four or five hundred yards away, a distance which, at 50 miles an hour, would take him some 15 to 20 seconds to cover, even if he did not reduce speed. The question is whether, in the light of the matters which I have set out, the third party driver's negligence was a factor which really contributed to this fatal accident. In my judgment, it was not. The liability is solely attributable to the negligence of the defendant."
I do not find myself in accord with this reasoning. Dymond -v- Pearce was a very different case. In that case aLorry 7½ feet wide was parked on a carriageway 24 feet wide in a well-lighted road. A motor-cyclist who had a clear view of it for 200 yards and had 16 feet of unobstructed roadway available to him but was keeping no lookout ahead because he was watching some girls on the pavement ran into the lorry and the pillion passenger was injured. Mr. Justice Bridge held the motor-cyclist solely to blame, and this court affirmed that decision. There the case against the lorry driver was founded on nuisance to the highway. This court held that, while there was a nuisance to the highway as being an obstruction, it did not constitute a danger, and, moreover, that the lorry driver was not negligent in parking in that way. The head-note to the report is not quite accurate in attributing to Lord Justice Edmund Davies the observation that "it did not present a danger to those using the highway in a reasonable manner". What he said at page 507 of the report was: "…. it did not present a danger to those using the highway in the manner in which they could reasonably have been expected to use it." It is not reasonable to expect that every user of the highway will use it in a reasonable manner. It is reasonable to expect that nobody will drive into a lorry parked so as to occupy only a third of a well-lighted carriageway. It would, however, be wholly unreasonable to expect that if you so mismanage a lorry that it obstructs two lanes of the carriageway on an unlighted motorway it is not going to constitute a danger to other road users.
I cannot see that there is any breach in the chain of causation between the negligent driving of Mr. Allen and the injury to Mr. Rouse. It is true that the arrival on the scene of Mr. Franklin's lorry and of the car provided some warningby lights which would have been observed by a careful driver, but the fact remains that Mr. Allen's negligence created a grave danger to users of the highway which the arrival of the car and Mr. Franklin's lorry did something to lessen but by no means to Remove.
A much closer case to the present one than Dymond -v Pearce is Harvey -v-...
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