Whiteford (Respondent/Claimant) v Kubas UAB (A Company)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Laws |
| Judgment Date | 09 May 2012 |
| Neutral Citation | [2012] EWCA Civ 1017 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2011/2464 |
| Date | 09 May 2012 |
[2012] EWCA Civ 1017
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CAMBRIDGE COUNTY COURT
(MR RECORDER FOY QC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
and
Lord Justice Richards
Case No: B3/2011/2464
Mr Jonathan Watt-Pringle QC and Mr Peter Freeman (instructed by Pierre Thomas & Partners) appeared on behalf of the Appellant.
Mr Andrew Axon (instructed by Minster Law Solicitors) appeared on behalf of the Respondent.
This is an appeal against an order made by Mr Recorder Foy QC, sitting in the Cambridge County Court, following a trial of liability arising out of a road traffic accident. The accident occurred at approximately 10am on 24 April 2009, when the claimant was riding a 750cc motor cycle along a country road near Ely and his right leg struck the front offside corner of an articulated lorry coming in the opposite direction. The claimant suffered a serious leg injury as a result of the impact. The lorry was owned by the defendant and driven by the defendant's servant or agent, a Mr Norkus.
The Recorder made a finding of primary liability against the defendant but with 50 per cent contributory negligence on the part of the claimant. In this appeal the defendant contends that the Recorder was wrong to find the defendant liable at all; alternatively that the claimant's contribution ought to have been assessed at a much higher level, the figure put forward being 80%.
The road in question was a narrow road with one lane in each direction and subject to the national speed limit of 60 mph. The claimant was driving northwards. He drove round a right-hand bend and then a left-hand bend. The lorry was coming in the opposite direction and the point of impact was either immediately after or just towards the end of the left-hand bend, viewed from the claimant's perspective. The Recorder saw no reason to doubt the claimant's evidence that he was travelling along the road at about 50 mph. The claimant was an experienced driver, indeed a driver of lorries, but not an experienced driver of motorcycles. He had obtained a motorcycle licence in February 2008 and had purchased in January 2009, shortly before the accident, the motorcycle he was riding at the time of the accident. He knew that lorries used the road. He gave evidence that as he came round the bend he saw this lorry. It was common ground that he and the lorry driver would have had the opportunity to see each other when they were about three seconds apart, but the accident reconstruction experts also agreed that neither driver would have been able to assess the lateral position of the oncoming vehicle within the carriageway until about a second later, that is about two seconds before the impact: the drivers' view of each other would have been hampered by a change in the elevation of the road, the bend to which I have referred and a large mature tree to the side of the road.
The claimant's evidence was that when he saw the lorry the cab appeared to be over the broken white line in the centre of the road. His case was that the lorry was too far over, that it should have been within its own lane and that, had it been, the accident would not have occurred.
The claimant did, however, accept that he was at fault himself because he could, as he put it, have tightened the bend a little, that is he could have driven further over to his left. He also accepted that the proper line for a motorcycle driving round this particular bend would have been in the centre of his lane and that, had he been in that position, the two vehicles would have passed safely. He accepted in cross-examination that the line he adopted took him closer to the centre than he should have been. He said he did not anticipate the danger that would be caused by a large lorry coming in the opposite direction on that bend. He agreed that this was a mistake on his part. He said that when he saw the lorry encroaching on his side of the road he panicked; but the Recorder observed that it was not clear exactly what, if anything, he did when he panicked: braking would not have helped him and it was probably too late to steer to the left to any significant degree. The Recorder also noted that in those circumstances it was rightly conceded by the claimant that he was contributorily negligent.
The experts agreed that the evidence suggested that neither vehicle was travelling particularly fast at the time of the impact. The Recorder judged that speed by itself was not an element in the causation of the accident. I should perhaps also mention that it was daylight, that the weather was fine and the road surface was dry, so there were no other factors of particular relevance with regard to the causation of the accident.
The Recorder said that the driver of the lorry was a professional driver driving a large vehicle on a narrow road and that he must or should have realised how important on a country road it was to keep to his left as far as possible. The driver had not in fact given evidence, having apparently been unable to get to the UK from Lithuania where he was domiciled; so he had been unable, as the Recorder put it, to contradict the evidence given by the claimant, who struck the Recorder as an honest witness.
Because of its importance for the issue of primary liability, the Recorder dealt in some detail with the position of the lorry in the road. He said that on the approach to the point of impact, each lane was 2.85 metres wide, but at the point of impact the road had narrowed so that the lorry's lane was only 2.7 metres wide. Those width figures relate to the distance between the centre of the broken white centre line and the centre of the continuous white line at the edge of the road. The experts agreed that the distance between the two lines themselves (i.e. excluding any part of the lines) at the point of impact was 2.6 metres.
The Recorder referred in his judgment to the lorry itself as being 2.6 metres wide. That was an error. The joint experts' report stated, and it is not in dispute, that the width of the lorry was about 2.5 metres. On the basis of the figure of 2.6 metres stated by the Recorder, he noted that, if the lorry was entirely within its own lane, it would take up most of the lane, leaving only 0.1 metres of free road, but that it was clearly possible for the lorry to be entirely on its correct side of the road. Although the figures he used were slightly in error, exactly the same reasoning applies on the basis...
To continue reading
Request your trial
-
Thorben Langvad Linneberg v Leong Mei Kuen
...354; [1972-1974] SLR 1 (refd) Wee Soon Hian v Lai Ching Mow [1968-1970] SLR (R) 173; [1965-1968] SLR 780 (refd) Whiteford v Kubas UAB [2012] EWCA Civ 1017 (refd) Wormell v Hagen [2009] BCJ No 1717 (refd) Yeoh Cheng Han v Official Administrator, Malaya [1972] 2 MLJ 7 (refd) Highway Code (Cap......
-
Thorben Langvad Linneberg v Leong Mei Kuen
...the situation was, in our view, a counsel of perfection. In the English Court of Appeal decision of Whiteford v Kubas UAB (A Company) [2012] EWCA Civ 1017, Richards LJ (with whom Laws LJ agreed) observed as follows (at [15] and [21]): Mr Watt-Pringle reminds the court that the lorry driver’......
-
Olivia Bennett v Timothy Southwell
...agreed she was not driving at that speed. 3 Although Mr Harris referred the court Whitford v. Kubas UAB (a Company) Neutral Citation [2012] EWCA Civ 1017, that was a decision on its particular ...
-
Contributory Negligence in the Twenty‐First Century: An Empirical Study of First Instance Decisions
...a vMatsim Properties Ltd [2011] EWHC 1302(QB); (296) Costa vImperial London Hotels Ltd [2012] EWCA Civ 672; (297)Whiteford vKubas UAB [2012] EWCA Civ 1017; (298) Woodham vJM Turner(t/a Turners of Great Barton) [2011] EWHC 1588 (QB), [2012] RTR 7; (299)Brown vBrent (Croydon County Court, 21 ......