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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Lakin v Lawrence & Anor [2015] EWCA Civ 272 (25 February 2015) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2015/272.html Cite as: [2015] EWCA Civ 272

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LUTON COUNTY COURT
(HER HONOUR JUDGE LINDSAY DAVIES)

		Royal Courts of Justice Strand, London WC2A 2LL
		25 February 2015

Lord Justice Vos:

Introduction

1. The claimant, Mr Guy Lakin, driving a powerful Saloon Subaru motorcar, overtook Mr Andrew Lawrence driving a Suzuki Samurai vehicle on 27 July 2011 on Southill Road, Cardington, Bedfordshire. Unfortunately the manoeuvre was unsuccessful. The cars collided and both ended in a ditch on the near side of the road, causing both drivers to suffer personal injuries and damage to their cars.
2. Her Honour Judge Lindsay Davies decided that Mr Lakin, the claimant, was to blame. Her order dated 27 June 2014 dismissed Mr Lakin's claim, gave judgment on Mr Lawrence's (the first defendant's) counterclaim against Mr Lakin and adjourned the case management conference that would have considered quantum until the determination of any appeal. This is the appeal against the judge's finding that Mr Lakin was entirely to blame for the collision.
3. The single ground for which Tomlinson LJ gave permission to appeal on 3 December 2014 was that the judge should, having found Mr Lawrence negligent in failing to notice the start of the overtaking manoeuvre and in allowing his vehicle to drift out of its own carriageway, have found Mr Lawrence partially if not mainly to blame for the collision. It appeared however in argument that the suggestion of apportioning blame between the parties was not made to the judge. Both parties contended that the other was entirely to blame.

The judge's findings

4. The salient facts found by the judge were that the collision took place on a dry, light summer evening at about 8pm on a straight stretch of narrow two-lane country road between two bends. There was a grass verge and then a ditch on each side of the road with trees at intervals along the edge of the ditches. The road surface was patchy and the road edges were defective in places. The road was undulating and cambered. Both vehicles were travelling south towards Old Warden at a point in Southill Road where the southbound carriageway was 2.35 metres wide whilst the opposite northbound carriageway was only 2.18 metres wide. Mr Lakin's Subaru was 1.92 metres wide to the outside of its wing mirrors and Mr Lawrence's Suzuki was 1.88 metres wide to the outside of its tyres, making the combined width of the vehicles 3.80 metres, leaving only 0.68 metres of road width (just over two feet in imperial measurements) whilst they passed one another.
5. The judge did not make an express finding as to the speed of the vehicles but both drivers said that the Suzuki was travelling at about 35 or 40 miles per hour before the incident. The speed limit was 60 miles an hour. The judge analysed certain tyre and gouge marks on the road but concluded that these marks only showed where the vehicles ended up after what was described as their "pirouetting" but did not show the starting positions of either vehicle. The judge also looked at the extensive damage to the vehicles but concluded that that did not assist in showing which part had hit which save that the passenger side of the claimant's Subaru hit the driver's side of the defendant's Suzuki. She found the evidence of both drivers impressive but did not accept all of what either one said because they were affected by shock and had rationalised their actions after the event using extrinsic evidence.
6. The crucial findings in the judge's judgment were in paragraphs 21-25 as follows:

"21. I reject the Claimant's evidence that he would have been able to see the rear tyre of the Suzuki with a suspension component hanging below it from the position he described, in other words being alongside, partly overtaking the Suzuki. If he could see the rear tyre (and any loose component that may have been there) he must have been behind the Suzuki and not alongside it. If from that position the Suzuki had 'drifted' across the white line there appears to be no logical reason for the Claimant to have continued his attempt to overtake. The reason he gave in evidence for deciding not to abort the overtaking manoeuvre was that he thought it was safer to take evasive action and move to the right hand side of the road.

22. I have come to the conclusion that his action in continuing to overtake once he saw the Suzuki 'drift' (on his own account) was a negligent manoeuvre and ultimately the cause of the accident. In doing so he failed to take account of the presence of the Defendant's vehicle on the road, he overtook when it was not safe to do so. There was insufficient width of road for him to continue with his proposed manoeuvre. By continuing he went off the road surface and onto the verge where his own evidence was that his steering went light and he lost control. He had an opportunity to abort the overtake but chose to continue with it. I find that driving in this way was negligent.

23. I have noted that the Defendant did not notice the Subaru start to overtake even though he had seen the vehicle behind him. I have come to the conclusion that he was not keeping a proper lookout as if he had been checking his rear view mirror and wing mirrors he should have seen the Subaru … I consider that it is possible that he did 'drift' across to the centre of the road while not paying sufficient attention to the vehicle travelling behind him. However such drifting may have contributed to the Claimant's problem but in the circumstances as I have described them was not the cause of the collision. I am satisfied that any such drifting occurred at a point where the Subaru had an opportunity to abort the overtaking manoeuvre. In these circumstances I do not find that the Defendant's driving was the cause of the collision or the accident.

24. My findings are reinforced by the Claimant's own description of the place of impact of the two vehicles as set out above [the rear quarter of the Suzuki and the front half of his Subaru] and his description of what he says he could see of the [Defendant's] rear offside tyre [namely, the wheel itself and a pale-coloured component swinging loose near the offside rear wheel].

25. On the balance of probabilities therefore the Claimant has not satisfied me that the collision was caused by the negligence of the defendant. The Defendant has satisfied me that the collision was caused by the negligence of the claimant."

Mr Lakin's argument on appeal

7. Mr Duncan McNair, counsel for the claimant, put his case both attractively and straightforwardly. He argued that the judge found that Mr Lawrence was negligent to drift out of his lane without looking yet she did not apportion any share of the blame to him. Had she applied the simple "but for" test the judge would have found that the accident would not have occurred at all but for Mr Lawrence's negligence. The only escape for Mr Lawrence was to establish a novus actus interveniens in the nature of wholly unreasonable conduct by Mr Lakin which eclipsed Mr Lawrence's own wrongdoing such as to make it no more than a backdrop for Mr Lakin's own negligence. Mr McNair points particularly to the passage where the judge said "however such drifting may have contributed to the claimant's problem but in the circumstances as I have described them was not the cause of the collision" as being a plain error.
8. Applying the correct test, Mr McNair submits that Mr Lawrence's drifting across the centre line without paying attention to what was behind him was more serious than making the wrong decision about whether abort an overtaking manoeuvre that had already begun or to keep going. Mr McNair contends by analogy with the case of Henderson v. Cooke [2002] EWCA Civ 1557 that liability should be apportioned as to 75 per cent to Mr Lawrence and only 25 per cent to Mr Lakin.
9. In oral argument Mr McNair concentrated on seeking to demonstrate that the judge had accepted that the overtaking manoeuvre had begun before the Suzuki drifted out of its lane and that what was really in issue was whether Mr Lakin ought to have braked rather than continuing to overtake. In these circumstances Mr McNair argued that it was inevitable that Mr Lawrence should bear some of the responsibility. His negligence could not be completely eclipsed by Mr Lakin's wrong decision to press on when he was only put in that difficult position by a clear act of negligence of the defendant.
10. Finally, Mr McNair argued that this was a question of law that on the judge's own findings she was required to confront but did not do so. Accordingly this court is entitled to do so for her and to apportion liability between the parties.

Mr Lawrence's argument in response

11. Mr Guy Vickers, counsel for Mr Lawrence, argued the matter with equal skill and concision. He submitted that on a proper construction of the judgment the judge was not to be taken as having found that the Suzuki did in fact drift across the white line. She said that that was possible but only found the defendant to have been negligent in failing to keep a proper lookout. If that were wrong Mr Vickers submitted that the judge did not find that the overtaking manoeuvre had begun when Mr Lakin saw the Suzuki edge across the road. That was clear from the sentence in paragraph 22 of the judgment saying: "There was insufficient width of road for him to continue with his proposed manoeuvre" (emphasis added). The judge had used the word "continue" in different ways in paragraphs 21 and 22 but the thrust of her fact finding was that the overtaking had not properly begun when Mr Lakin had the opportunity to decide not to overtake. It was that decision that the judge found was the entire cause of the accident.

Discussion

12. It is first important to note that Mr Lakin was not given permission to appeal on the basis that the judge ought to have found that it was not unreasonable of Mr Lakin to make the wrong decision about continuing to overtake in the "agony of the moment" (see for example Scott v. Shepherd [1773] 3 Wils 403 and Brandon v. Osborne, Garret & Co Ltd [1924] 1 KB 548 cited at paragraph 2-126 of Clerk & Lindsell on Torts 21^st Edition 2014). At times Mr McNair sought to suggest that Mr Lakin's decision was a split-second one as to whether or not to brake and that he would not have been in that precarious position if the Suzuki had not wandered over the centre line. In my judgment it was not open to Mr Lakin on this appeal to contend that this was one of those cases where there was an emergency decision to be taken occasioned by the defendant's negligence.
13. Secondly it is important to note that in cases of this kind the Court of Appeal will rarely interfere with the findings of the judge as to questions of causation. Here, as it seems to me, the judge reasoned that Mr Lakin was far enough behind the Suzuki when it wavered across the white line as to leave him time to abort his overtaking manoeuvre. She might quite justifiably have thought that to overtake on such a narrow stretch of road was a dangerous manoeuvre in itself so that Mr Lakin (who was a community police officer who had undertaken an advanced driving course) ought to have been all the more aware of the possibility that the car in front might not maintain an exactly consistent trajectory whilst the overtaking was taking place. After all, there was only two feet to spare in total.
14. The question in my judgment is whether the Court of Appeal can in these circumstances, not having heard the evidence, interfere with the factual determination of a judge who formed a clear view that Mr Lakin had overtaken when it was not safe to do so because it was a narrow road and the car in front was over the white line. It will be recalled that the judge did not accept Mr Lakin's evidence as to where he was when he saw the Suzuki edge over the white line. I do not think it is appropriate to engage in a minute analysis of the phraseology of the judgment. On a fair reading of the judgment as a whole I have no doubt that the judge found that Mr Lakin was far enough behind the Suzuki when he saw it waver to enable him to take a reasoned decision as to whether to proceed with his intended overtaking or not. He decided, in common language, to chance it, which involved him going on to the soft verge which caused him to lose control. I do not accept that the judge found that Mr Lakin only went onto the verge after he had lost control. Paragraphs 15 and 22 of the judgment, read fairly together, made clear that "[b]y continuing, he went off the road surface and onto the verge, where his own evidence was that his steering went light and he lost control", thus causing the accident.
15. I agree however with Mr McNair's submission that the judge missed an opportunity in paragraph 23 of her judgment to address the causation question head on. She passes seamlessly from what I think again on a fair reading was a finding that the defendant had been negligent in allowing his car to drift to the conclusion that "in the circumstances as I have described them [that negligence] was not the cause of the collision". She would have been better to have asked at that point whether this was a case where it could properly be said that both drivers were partially responsible for causing the accident since the "but for" test was certainly answered positively in respect of each of them. But in causation terms it seems to me that the judge's conclusions in paragraphs 23-25 do make it sufficiently clear that Mr Lakin's conduct in proceeding to overtake the Suzuki knowing that it had edged over the white line broke the causal connection between Mr Lawrence's negligence in failing to keep a proper lookout and allowing the Suzuki to drift on the one hand and the collision that ultimately occurred on the other hand. In short, she found that the collision was caused entirely by Mr Lakin's decision to overtake, a decision which in all the circumstances he should simply not have made.
16. There is in my judgment no true analogy with the case of Henderson v. Cooke supra where the motorcyclist was already committed to the overtaking manoeuvre at excessive speed before the defendant car driver pulled out in his path. That was a classic 50/50 case, as the Court of Appeal in effect held. The judge cannot be wholly blamed for not dealing with apportionment or with novus actus interveniens when neither party addressed argument to these points at the trial. Each party adopted the high-risk strategy of arguing that the other was entirely to blame, and that approach shaped the judge's answer to the issues she tried. Though the judge did not put the matter in this way, in reaching her conclusion she may have had in mind Mr Lakin's own evidence to which we were referred in argument which seems to have been to the effect that when the Suzuki was over the white line he did not have room to get past but that, because things were unfolding at speed, knowing there was a soft verge on the offside onto which he would have to go, he chose to continue the overtaking manoeuvre. Whatever decision we might have made had we been the tribunal of fact, I do not think that the court would be justified in interfering with the judge's conclusions, reached as they were after she had heard the evidence.

Disposal

17. For the reasons I have given I would dismiss the appeal.

Lord Justice Moore-Bick:

18. I agree.

Lord Justice McFarlane:

19. I also agree.