Case No: B3/2009/1245
Neutral Citation Number: [2010] EWCA Civ 184
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRISTOL COUNTY COURT
(RECORDER HILL-SMITH)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday, 5th February 2010

Before:

LORD JUSTICE MUMMERY
LORD JUSTICE RICHARDS
and
LORD JUSTICE RIMER

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Between:

	BROWN 	
Appellant	
	- and -		
	
PATERSON	

Respondent	

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(DAR Transcript of 
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Mr William Audland (instructed by Messrs Davies and Partners) appeared on behalf of the Appellant
Mr Andrew Davis  (instructed by Messrs Jacobs) appeared on behalf of the Respondent
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Judgment
Lord Justice Richards:

1.	This case concerns a collision between a motor car and motorcycle on a main road at night.  Very sadly, the motorcyclist, Mr Brown, was seriously injured in the accident.  He brought a personal injury claim against the driver of the car, Dr Paterson, who counterclaimed for damage to the car.  After a trial at Bristol County Court, Mr Recorder Hill-Smith found that the accident was caused by the negligence of the claimant, Mr Brown, and that the defendant, Dr Paterson, had not been negligent.
2.	He therefore dismissed the claim and gave judgment for the defendant on the counterclaim.  The claimant now appeals against the Recorder’s order.  He does not dispute the finding of negligence against himself.  His case is that the Recorder should have made a finding of negligence against the defendant as well and should have apportioned liability equally between the parties.
3.	The accident happened on 9 December 2004 at 9.50 pm on the A420 at the junction with West Littleton Road, Marshfield, South Gloucestershire.  The claimant was riding a 400cc Honda off-road motorcycle which, because it was an off-road vehicle, had no indicator lights.  The defendant was driving a BMW motor car.  
4.	The Recorder sets out certain undisputed matters at paragraph 2 of his judgment:

“Both Mr Brown and Dr Paterson were proceeding in an easterly direction.  It was pitch-black and there was no street lighting at the relevant junction.  The speed limit on the A420 road at that point was 60 miles an hour.  At the point of collision, the road was 7.5 metres wide, each lane being 3.2 wide with a central hatched area 1.1 metres wide.  Visibility in the approach to the collision site in an easterly direction was good.  There was a sweeping, open right-hand bend as one approached the junction and visibility has been put at 383 metres.”

5.	In fact there were junctions on both sides of the main road.  The main focus of the case was the junction to the right as one travelled along the eastbound carriage of the main road, but there was also a smaller junction to the left very slightly further on.  
6.	The Recorder found that the accident happened when the claimant was travelling on his motorcycle on the nearside of the eastbound carriageway and crossed over in front of the defendant’s car.  The impact occurred in the centre of the eastbound carriageway.  The claimant intended to turn right at the junction and slowed down on the approach to the junction, but then accelerated in order to execute the right-hand turn.  It is clear from the Recorder’s findings that he moved suddenly across the carriageway without indicating or signalling at any stage.  It is therefore unsurprising that the Recorder found in paragraph 50 of his judgment that: 
“…Mr Brown was negligent in the way that he executed that right-hand turn from a nearside position directly into the path of the vehicle driven by Dr Paterson.”

7.	The Recorder went on to consider whether on that scenario the defendant had nevertheless been negligent.  Should he have anticipated that the claimant might turn to the right and have modified his driving to accommodate that eventuality?  The principal suggestions put to him in this respect in cross-examination were that he should have slowed down until the claimant had cleared the right-hand junction and possibly the left-hand junction as well or, alternatively, that he should have alerted the claimant by flashing his lights.  
8.	The Recorder referred to Rules 142 and 143 of the Highway Code.  That was the numbering in the then current edition.  The corresponding rules in the current edition are 166 and 167.  Since they are essential to this appeal I will read the material parts of the rules:
“142. DO NOT overtake if there is any doubt, or where you cannot see far enough ahead to be sure it is safe. For example, when you are approaching
•	a corner or bend 
•	a hump bridge
•	the brow of a hill.
143. DO NOT overtake where you might come into conflict with other road users. For example

•	approaching or at a road junction on either side of the road
…”

9.	The relevance of rules about overtaking is this.  The Recorder had found that the defendant was travelling at just less than 50mph and that he observed the claimant some distance away and saw the claimant’s rear light.  It was clear and it is common ground that he would have gained on the claimant.  The Recorder accepted that the speed at which he gained was probably in the region of the speed estimated by the defendant, which was 20-30 mph.  So, although the Recorder does not put it in quite this way, it is plain that the defendant was gaining rapidly on the motorcycle travelling on the nearside of the road and that the defendant moved out in order to overtake the motorcycle.   On the evidence it is apparent that he moved out sufficiently for his offside wheels to go onto or just over the central markings, but he did not cross into the opposite carriageway. It was therefore an overtaking manoeuvre, but one of a very limited nature.  
10.	Having referred to the provisions of the Highway Code, the Recorder continued his judgment as follows, at paragraph 53:
“The points made by Dr Paterson in his evidence in this regard are that (i), there was nothing to alert him that Mr Brown was not going to proceed straight on; (ii) he did not see any signal, and that will include any hand signal because obviously Mr Brown did not have any lights; (iii) Dr Paterson did not see any break lights; (iv) Dr Paterson was not aware that Mr Brown had slowed down; (v) whilst Dr Paterson agreed that it would have been safer to have slowed down, he did not consider that it was a reasonable thing to do; and (vi) Dr Paterson said he was not a fan of flashing his lights, because this might induce night blindness, or that there was a risk that that might happen in any event.”

11.	In the next paragraph, paragraph 54, the Recorder made or referred to a number of relevant findings: that the claimant had indeed slowed down prior to the junction; that the defendant did not perceive that the claimant had slowed down in that way; that the claimant did not give a hand signal; and that the defendant did not see a brake light.  He also accepted the defendant’s evidence that it was reasonable for him to not to flash his lights.  
12.	He said that the question, therefore, was whether the defendant was negligent in failing to slow down or stop or whether he should have seen the claimant slowing down and have taken evasive action.   
13.	At paragraph 56 he set out the passage in the agreed statement of the experts to the effect that the time for the motorcycle to move across into the path of the defendant’s car was so short that the collision was likely to have occurred irrespective of the approach speed of the car.
14.	He then set out in paragraph 57 his conclusions as follows:
“I think that whilst there was a possibility here that probably should have presented itself to Dr Paterson that Mr Brown might turn to the right, I am not satisfied that, given the darkness of the night, he necessarily should have been aware that Mr Brown has slowed down.  I am not persuaded that this is a case where his standard of driving can, on a balance of probabilities, be criticised.  I think that even if Dr Paterson had slowed down -- I do not think it is suggested that he should have stopped -- I think that even if he slowed down, given the joint findings of the experts, it is not demonstrated that in fact a collision would, on the balance of probabilities, have been avoided.  So whilst I accept the principle of rules 142 and 143 and whilst I accept that Mr Brown had slowed down, I am not satisfied that Dr Paterson was negligent in failing to slow down or move further across or flash his lights.  Moreover, even if he had slowed down, it is not proven on the balance of probabilities that an accident could have been avoided.”

15.	Sir Richard Buxton granted permission to appeal to this court with hesitation and only because he had some concerns about the Recorder’s handling of the provisions of the Highway Code, though he did not limit the grant of permission.  The appeal has been presented to us on behalf of the claimant by Mr Audland, who has more than made up for a rather long and detailed written skeleton argument by presenting a very clear and concise set of oral submissions, putting forward the appellant’s case very skilfully.  We have also been assisted by clear and helpful submissions from Mr Davis for the defendant on the particular matters with which we asked him to deal.  
16.	The primary submission by Mr Audland is that it was negligent of the defendant to overtake the claimant at all:  he should have slowed down until it was clear what the claimant was doing.  In support of that contention Mr Audland relies on what he says was a failure by the defendant to comply with Rules 142 and 143 of the Highway Code.  He emphasises that those rules are there to guard against risks, including the possibility that other users of the road will make mistakes.  As to Rule 142, he points to the wording that one should not overtake if there any doubt.  He submits, first, that there must have been considerable doubt as to what the claimant was doing or was going to do:  the claimant had slowed down on the approach to the junction when there would be no reason to slow down unless he was going to make a turn.  Secondly, he took us to passages in the cross-examination of the defendant and in particular where at one point the defendant appeared to accept that what the claimant was doing was not clear to him.  Thirdly, although he did not develop this aspect orally, Mr Audland relied on the fact that there was also a pedal cyclist coming in the opposite direction who, he said, might have turned right across the defendant’s path.
17.	In my judgment the first of those points is met by the Recorder’s acceptance of the defendant’s evidence that he did not perceive that the claimant had slowed down.  There is a separate argument that the defendant should have seen that the claimant was slowing down, but it is an argument I would reject for reasons to which I will return.  
18.	The second point, looking at what the defendant said in cross-examination, is not in my view a fair reflection of the passage in the cross-examination taken as a whole.  The defendant went on to state in terms and repeatedly that it was clear to him that the claimant was going straight ahead, that there was no indication that the claimant was doing anything but going straight ahead.  The Recorder observed at paragraph 40 of his judgment that, when the defendant said that the claimant’s intention was not clear to him, all he meant was that the claimant’s intention to turn right, now known to him, was not clear to him at the time.  That may well be the right way to view it:  the Recorder was best placed to make an assessment on this.  In any event, I do not accept that the defendant’s evidence could fairly be said to show any doubt in his mind as to what the claimant was doing or might do.  
19.	As to the third point, concerning the pedal cyclist, the defendant’s evidence, which there is no reason whatsoever to reject, was that the cyclist was travelling slowing and unwaveringly on the far side of the road with no indication at all that he was going to turn right.  The cyclist does not seem to me to be of any materiality.  
20.	Standing back, I do not think that this was a situation of doubt to which Rule 142 applied or that the possibilities were such as ought reasonably to have given rise to such a doubt.  
21.	It is right to say that the beginning of paragraph 57 of the Recorder’s judgment is puzzling.  That is the passage where he says that there was a possibility that probably should have presented itself to the defendant that the claimant might turn to the right.  Having regard to the Recorder’s other findings, I do not think that he can have meant that there was a real possibility such as ought to have given rise to a doubt as to what the claimant might do; and, if he did mean that, then I think he was wrong in that view since, in the light of his other findings, I do not think that the claimant turning right ought to have presented itself to the defendant as a real possibility.  There was nothing in the circumstances, including the claimant’s position in the road, his speed and the lack of any indication or signal, to suggest that he might turn right.
22.	In relation to Rule 143, Mr Audland stresses that one must not overtake where one might come into conflict with other road users, that is to say that the rule is concerned with the risk of conflict.  It is true that the defendant was approaching a junction, which is the first example given of where such a risk may arise.  But there is no absolute prohibition against overtaking when approaching a junction.  The question whether the existence of a junction creates a risk of conflict with other road users, so that one must not overtake, depends on all the circumstances.  As things appeared to the defendant, who on the evidence was constantly assessing the situation ahead of him as he drove along, there was no risk of conflict with other road users in this case.  Specifically there was no reason to consider that there might be a conflict with the claimant or with the cyclist coming in the opposite direction.  As to other possible users of the road, the fact is that it was dark and the presence of any vehicles travelling along the main road from the opposite direction or approaching the junction from the side roads would have been obvious from their headlights, but there were none.
23.	Accordingly, in my view, there was no breach of either of the two provisions of the Highway Code upon which the claimant relies.  I should add for completeness that, even if there had been a breach, it would not be sufficient by itself to establish negligence or create a presumption of negligence.  It would be one of the circumstances on which the claimant could rely in establishing negligence.  See Powell v Phillips [1973] RTR 19 at 22, commenting on the effect of the predecessor to what is now section 38(7) of the Road Traffic Act 1988.  
24.	Looking at the circumstances of this case as a whole, I have no hesitation in rejecting the submission that the defendant ought not to have overtaken the claimant and ought instead to have slowed down behind him until the claimant had passed through the junction.  I simply cannot accept that a reasonably careful driver would not have undertaken the limited overtaking manoeuvre involved in passing the claimant’s motorcycle in this situation.  It was not in breach of the Highway Code and it was not negligent.  
25.	I should deal briefly with an argument mentioned earlier, that the defendant should have perceived that the claimant had slowed down.  The argument is based on the fact that the defendant was closing in on the claimant at a considerable speed.  The precise speed does not seem to me to matter, and I think it unnecessary to address separately a ground of appeal that challenges the judge’s acceptance of the defendant’s estimate that he was closing in at a speed of 20-30 mph.  Undoubtedly the defendant was travelling faster than the claimant and was catching up with him, indeed closing in on him quite fast.  But that does not begin to show that the defendant ought to have realised that the claimant was slowing down, especially when it is borne in mind that it was dark and that the defendant only had the rear lights of the motorcycle to judge by.  It might of course have been very different if the claimant had braked, but the Recorder accepted the defendant’s evidence that he did not see any brake lights.  In my view the Recorder was entitled to reject the contention that the defendant was negligent in failing to appreciate that the claimant was slowing down.  
26.	I have to say that, even if the defendant had realised or ought to have realised that the claimant was slowing down, I do not think that that would enable the claimant to establish that the defendant acted negligently in overtaking.  In the absence of any specific indication that the claimant was intending to turn right, the mere fact that he was slowing down was in my view insufficient in the circumstances to put the defendant on notice of a possibility that the claimant might be intending to turn right.  
27.	Mr Audland contends that, even if it was reasonable for the defendant to overtake, the defendant was nonetheless under a heightened duty to take particular precautions when overtaking and ought therefore to have slowed down and flashed his headlights or sounded his horn.  Again I disagree.  The defendant was travelling at a perfectly reasonable speed for this stretch of road, even given that it was at an approach to a junction, and on the evidence and the findings to which I have already referred there was nothing in the particular circumstances that called for a reduction in his speed.  Further, there was no reason to believe that the claimant might be unaware of the defendant’s car coming up behind him or that any additional warning was needed.  The car was travelling on dipped headlights.  It has not been suggested that the configuration of the road prevented the headlights from being seen by the claimant, at least in his mirror.  To flash headlights on full beam was not reasonably necessary and might have had the detrimental effect of dazzling the oncoming cyclist.  Similarly it was not reasonably necessary to sound the horn.
28.	Accordingly, I would reject the alternative way in which Mr Audland puts his case as well as rejecting his primary submission.  In my judgment the Recorder was right to dismiss the claim in negligence against the defendant.  It is true there is a degree of confusion towards the end of the Recorder’s judgment where he considered expert evidence directed to causation rather than to negligence and he included points relevant to causation in his conclusions at paragraph 57. None of that, however, in my view, undermines his decision on negligence or gives rise to any ground for interfering with it.  
29.	For those reasons I would dismiss the appeal.

Lord Justice Rimer:

30.	I agree.

Lord Justice Mummery:

31.	In the last paragraph of his judgment, paragraph 58, the Recorder said this: 

“I realise that this will be a bitter decision for Mr Brown, who, as I have already said, presented himself very well in the witness box.  I have no doubt as to his integrity and the integrity of the evidence he gave.  As I say, he was a sympathetic figure and I have every sympathy for him.  However, it is my duty to make findings based on the evidence presented to the court, and those are my findings.”

32.	It is the duty of this court to decide, on the appeal, whether the Recorder’s decision was wrong.  For the reasons given by Richards LJ, with which I agree, the Recorder’s decision was not wrong on the evidence that he heard.  There was no error of law in the way that he reached his conclusion.  

33.	I therefore agree that this appeal should be dismissed.

Order: Appeal dismissed