Rouse v Squires [1973] EWCA Civ 9 (22 March 1973)

Neutral Citation Number: [1973] EWCA Civ 9 Case No: IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL. (On appeal from decision of Deputy Judge Norman Richards, Q. C., 20th October, 1972.) Royal Courts of Justice, 22nd March 1973. B e f o r e : LORD JUSTICE BUCKLEY LORD JUSTICE CAIRNS and MR JUSTICE MACKENNA. ____________________ MARY JOY ROUSE Plaintiff. and KEVIN JOHN SQUIRES Defendant (Appellant) and F. V. CARROLL & SONS LTD. Respondents and EDWARD ALFRED ALLEN (Third Parties) ____________________ (Transcript of the Shorthand Notes of the Association of Official Shorthandwriters, Ltd., Room 592 Royal Courts of Justice, and 2, New Square, Lincoln's Inn, W. C.2.) ____________________ 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). ____________________ HTML VERSION OF JUDGMENT. ____________________ Crown Copyright © LORD JUSTICE BUCKLEY : I will ask Lord Justice Cairns to deliver the first judgment. LORD JUSTICE CAIRNS: On the night of the 23rd December, 1968, on the M1 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 Ltd. 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 M1, for reasons which were not fully explained but which admittedly involved negligence on Mr. Allen's part, lost control of the vehicle: 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 the lorry 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 jack-knifed 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: "Now 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 proximity of 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 a lorry 7 ½ 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 C 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 warning by 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-Fearce is Harvey -v- The Road Haulage Executive , which the learned judge cited, but distinguished. There on a foggy day the defendants' lorry was negligently placed so as to obstruct nearly half a carriageway which was 30 feet wide. The plaintiff motor-cyclist ran into it because he was driving too fast in fog. This court, allowing an appeal from Mr. Justice Slade who had held the plaintiff solely responsible for his own injuries, held the drivers equally to blame. There is, of course, the difference in this case that Squires collided not with Allen's lorry, but with Franklin's. However, this does not mean that the continuing presence of Allen's lorry blocking two lanes was not a factor in causing the collision between Squires' lorry and Franklin's. Squires' evidence includes these questions and answers "(A) As I got over the incline to drop down the other side I saw what looked like vehicles moving in front of me about 300 yards further down the road. Keeping at the same speed of about 50 miles an hour I continued on the road towards Leeds. As I got nearer I saw that there had been an accident - what looked like an accident. (Q) Can you give my Lord any indication as to how far ahead of you that was? (A) Roughly, I should think about 250 yards, Sir. (Q) Can you be at all certain as to distance, in fact? (A) Well, I am sorry, it would be less than that, because I think it was only about 200 yards to the incline. I am sorry, it was about 150 yards, not 250, Sir." I interpolate that the learned judge in his judgment accepted 150 yards as the right figure. " (Q) What did you do? (A) I braked and came over to the centre lane. (Q) Pause there. Why did you decide to move over to the centre lane? (A) Because the first lane, with the accident involved, was blocked. (Q) Could you see at that time whether or not the centre lane was blocked? (A) It was not until I started to go into the centre lane that I saw what looked like a car blocking the centre lane. (Q) What did you do then, Mr. Squires? (A) I braked harder and the next thing that happened was I went into a skid. (Q) And what happened then? (A) Something seemed to go wrong with the wagon and I shot across the centre reservation. (Q) Before that did your vehicle come into contact with anything? (A) I didn't know at the time it had. I was told after that it had done. (Q) You accept that your lorry did in fact come into contact with the rear of another vehicle, which we have called the second lorry? (A) I do, Sir." The learned judge did not find in terms that this evidence was true, but he gave no indication that he disbelieved any of it and it was unchallenged. I think this court ought to accept that it was because the centre lane was blocked that Squires had to apply his brakes harder, so producing the fatal skid. Another case which supports Mr. Squires' claim is that of Barber -v- British Road Services (reported only in The Times of the 18th November, 1964). There a large lorry was backed out into the road so as to obstruct it and the driver of another vehicle went into it. It was said in terms by Lord Justice Pearson, and was implicit in the other judgments, that a driver must not assume that other drivers will be driving at moderate speed or keeping a proper lookout. That was in accordance with what had been said by Lord Uthwatt in the case of the London Passenger Transport Board -v- Upson (1949 A. C. p.155 at p.173): "In the view that I have formed it is not necessary for me to deal with the question of negligence. I desire only to register my dissent from the view expressed by the Master of the Rolls that drivers 'are entitled to drive on the assumption that the other users of the road, whether drivers or pedestrians, will behave with reasonable care.' It is common experience that many do not. A driver is not, of course, bound to anticipate folly in all its forms, but he is not, in my opinion, entitled to put out of consideration the teachings of experience as to the form those follies commonly take." Observations to similar effect were made by Lord du Parcq at page 176 of the same report. Mr. Stuart-Smith, for the Third Parties, contends that the jack-knifed lorry ceased to constitute a danger once the other two vehicles, the motor car and Mr. Franklin's lorry, took up their positions. The learned judge, in my view, applied the wrong test when he found that the scene of the obstruction was adequately lighted to warn any driver coming along and keeping a proper lookout. If one takes account, as I consider one must, of the driver who, while not deliberately driving against an obstruction, nor driving recklessly without regard to possible dangers, is driving at an excessive speed and not observing or not interpreting correctly lights ahead, I find it impossible to say that Allen's lorry did not continue to be a danger. Its danger was due to its being in a position where it caused an extensive obstruction, lighted in a way which would not make it clear to approaching traffic what the nature or extent of the obstruction was: and it must be taken into account that the road was frosty, so that it would be necessary for a driver coming along the carriageway to appreciate at an earlier stage than would ordinarily be necessary that there was something ahead which required him to apply his brakes. I do not think it can be said that the negligence of which Mr. Squires was undoubtedly guilty was of such a character or degree as to take it out of the conduct which another driver ought to expect may occur upon the highway. Mr. Stuart-Smith then relies on the doctrine of the well-known case of Davies -v- Mann (10 Meeson & Welsby's Reports p.546) and contends that, despite the view expressed by Lord Justice Denning (as he then was) in Davies -v- Swan Motor Co . (Swansea) Ltd . (1949 2 K. B. D. p.291, at pp. 322-5) that that doctrine may have disappeared as a result of the Contributory Negligence Act 1945, it is still part of our law, so that the driver who negligently drives into an obstruction negligently created by another cannot recover. In this connection he cited a number of cases, beginning with The Volute (1922 1 A,C. p.129). A well-known passage in the speech of Lord Birkenhead, Lord Chancellor, at page 144 of the report of that case is in these terms: "Upon the whole I think that the question of contributory negligence must be dealt with somewhat broadly and upon common-sense principles as a jury would probably deal with it. And while no doubt, where a clear line can be drawn, the subsequent negligence is the only one to look to, there are cases in which the two acts come so closely together, and the second act of negligence is so much mixed up with the state of things brought about by the first act, that the party secondly negligent, while not held free from blame under the Bywell Castle rule, might, on the other hand, invoke the prior negligence as being part of the cause of the collision so as to make it a case of contribution. And the Maritime Conventions Act with its provisions for nice qualifications as to the quantum of blame and the proportions in which contribution is to be made may be taken to some extent declaratory of the admiralty rule in this respect". In relation road accidents the Contributory Negligence Act 1945 may be taken to play the same part as the Maritime Conventions Act did and does in relation to collisions at sea. Mr. Stuart-Smith fastens on the words, "where a clear line can be drawn, the subsequent negligence is the only one to look at". I would emphasise the words, "and the second act of negligence is so mixed up with the state of things brought about by the first act". Mr. Stuart-Smith then referred to the case of Stapley -v-Gypsum Mines Ltd . (1953 A. C. p.663), a case frequently quoted in other connections, but not often in relation to road accidents, relying upon a citation in that case of the passage from The Volute which I have just read. It was in fact referred to by four of their Lordships, but the few words on which Mr. Stuart-Smith relies were of no relevance whatever in relation to the Stapley case. Next comes the case of Marvin Sigurdson -v- British Columbia Electric Railway Co. Ltd . (1953 A. C. p.291). That was a case where the Judicial Committee in reversing a decision of the Court of Appeal in British Columbia restored the verdict of a jury, holding the motorman of a street car solely to blame for colliding with a vehicle which had been negligently driven on to the street car track. But there the defendants had contended that as a matter of law the jury's verdict could not stand. The question of causation being ultimately one of fact, it is not surprising that that legal submission was rejected. In the present case we are dealing not with the verdict of a jury, but with the decision of the learned judge, and since, as I have indicated, I think that he applied the wrong test, I consider that we should feel free to review his finding as to causation. Then there was cited The Boy Andrew (1948 A. C. p.140). Davies -v- Mann was discussed in that case, not to apply but to distinguish it, and the situation in that case was in fact miles away from being a Davies -v- Mann case. The last case referred to was that of The Eurymedon (1958 Pr. p.41), a decision of this court in an admiralty case where there had been a collision between the ships, the Eurymedon and the Corstar in the River Thames; the Corstar being drawn up at anchor athwart the river in a position where she ought not to have been, but with her anchor lights exhibited. The Eurymedon , proceeding up the Thames, collided with the Corstar . It was held by Mr. Justice Bucknill that both vessels were equally at fault, and his decision was upheld by this court. So far as the facts of that case go, they are not dissimilar from those in the present case. There are passages in the judgments which are of assistance to Mr. Stuart-Smith's argument. But I observe that Mr. Justice Bucknili, in a sentence from his judgment which is quoted by Lord Justice Greer on page 48, said this: "The knowledge or lack of knowledge of the Eurymedon as to the improper position of the Corstar appears to me to be a cardinal fact on this issue as to the liability of the Corstar ." The judge said in that case that it could not be said that those navigating the Eurymedon had knowledge of the position of the Corstar until too late. So in this case Mr. Squires did not have knowledge of the position of the jack-knifed lorry until too late. In both cases it was because of negligence on the part of the approaching vessel or vehicle that that knowledge was not obtained, but the cardinal fact, as Mr. Justice Bucknill put it, was that it was not in fact obtained. Lord Justice Slesser affirmed the decision on grounds different from those that had been stated by Mr. Justice Bucknill, but neither of the other two members of the court dissented from those grounds, and Lord Justice Scott said expressly at page 54 that he agreed with the conclusion of Mr. Justice Bucknill. He said: "I see no ground for thinking that in holding both vessels to blame he acted on any wrong view of the law....." After consideration of these various cases, the conclusion I have reached is that Harvey -v- The Road Haulage Executive and Barber -v- British Road Services are authorities binding on us to this effect. If a driver so negligently manages his vehicle as to cause it to obstruct the highway and constitute a danger to other road users, including those who are driving too fast or not keeping a proper lookout, but not those who deliberately or recklessly drive into the obstruction, then the first driver's negligence may be held to have contributed to the causation of an accident of which the immediate cause was the negligent driving of the vehicle which because of the presence of the obstruction collides with it or with some other vehicle or some other person. Accordingly, I would hold in this case that Mr. Allen's negligence did contribute to the death of Mr. Rouse. The learned judge said that if he had found that Mr. Allen's negligence was causally connected with the death he would have assessed his share of the blame as one-tenth. I can see no proper basis for so low a proportion. I recognise that the House of Lords decided in the shipping case of The Macgregor (1945 A. C. p.197) that an appeal court should be slow to interfere with an apportionment arrived at by the trial judge unless the appeal court concludes that he has gone wrong on his assessment of the facts or on the principles to be applied. That authority has been recently applied by this court to a road accident in the case of B rown -v- Thompson (1968 1 W. L. R. p.1003). But there is this feature in the present case which did not exist in either of those two cases that the primary decision of the learned judge was that the Third Parties here were not to blame at all. Having formed the view that the negligence of Mr. Allen was not a contributory cause of the accident at all, it is easy to see that he was likely to conclude that, if it was a contributory cause to any extent, that extent was likely to be a very low one. But I look at the situation in this way. Of course we do not know exactly what happened to Mr. Allen's lorry; but there was nothing to suggest that he had any emergency situation to face. He for some reason had simply lost control of his vehicle, presumably by driving too fast on a frosty road or by unwisely applying his brakes. Mr. Squires has been held by the learned judge (and I do not query this part of his finding) to have been extremely negligent in that, in addition to driving too fast, he failed to keep a proper lookout. But it can be said of him that he did not initiate the dangerous situation but failed to take adequate steps to cope with a situation that already existed. Through that failure he must be held to be the person mainly responsible for this calamity. In my view the right proportion of blame which should be put on his shoulders is 75 per cent, as against 25 per cent, on Mr. Allen. I would allow the appeal and give judgment against the Third Parties accordingly. MR JUSTICE MACKENNA: I base my judgment on five findings of fact which are amply supported by the evidence. 1. Allen was negligent. He drove his lorry in such a way that it ended up across the slow and centre lanes of his half of the road and could give no explanation of how this happened. 2. Scattergood, whose car collided with Allen's lorry and ended up behind it in the centre lane, was not negligent: he had no chance of avoiding this collision. 3. Franklin was not negligent in pulling up behind Allen's lorry: he did so in order that his headlights might illuminate the side of Allen's trailer and so make the road safe for other traffic using this part of the roadway. 4. Squires, who collided with Franklin's lorry five or ten minutes after the collision between Scattergood and Allen, was negligent. If he had been keeping an intelligent lookout he would have seen the vehicles ahead of him at a distance of 400 yards and would have realised that they were stationary. He did not realise that they were stationary until he was 150 yards away. He did not at any time observe either the rear lights of Scattergood's car or the side of Allen's trailer, although Franklin's headlights were focused on it. He was driving at an excessive speed. 5. If Allen's lorry had not been athwart the centre lane Squires would probably not have collided with Franklin's lorry. The position of Allen's lorry in the centre lane, observed by Squires just before his collision with Franklin's lorry, caused him to brake harder than he would otherwise have done. Because he braked harder his lorry went into a skid. Because it skidded it collided with Franklin's lorry and so killed Rouse. On these facts I would hold that Allen's negligence contributed to cause the fatal collision between Squires and Franklin. His driving in such a way that his lorry ended up across two lanes of the roadway was negligent because of the risk it created for other vehicles travelling in the same direction. The risk was that these other vehicles might collide with the lorry or might cause or suffer damage in seeking to avoid such a collision. Though this risk was diminished when the headlights of Franklin's lorry were focused on the trailer, it still existed to a substantial degree, and because of it Squires collided with Franklin's lorry. The case might have been different if there had been no connection between Allen's negligent driving and the fatal collision except that it had caused Franklin to stop where he did. We have been referred to a number of cases where the parties were guilty of negligence and it was argued that the negligence which was subsequent was the sole cause of the accident. I would deduce this rule from the cases. Where the party guilty of the prior negligence has created a dangerous situation, and the danger is still continuing to a substantial degree at the time of the accident, and the accident would not have happened but for this continuing danger, he is responsible for the accident as well as the party who was subsequently negligent. A passage was read to us from Lord Birkenhead's speech in The Volute. He said that where a clear line can be drawn between the prior and the subsequent negligence the subsequent negligence will be the sole cause of the accident. There are few reported cases in which this line has been drawn. I do not think it can be drawn in any case where the danger created by the prbr negligence is still continuing. It is otherwise, of course, if that danger has been eliminated. It was argued for Allen that while his lorry was illuminated by Franklin's headlights it had ceased to be dangerous for motorists keeping a proper lookout and driving at a reasonable speed. This may be so, but it is not enough to exonerate Allen completely. An obstacle may still be dangerous even though the danger has been reduced by lighting so that it no longer imperils those who use reasonable care for their own safety: see the judgment of Mr. Justice du Parcq in Walker -v-Bletchley Flettons Ltd . (1937 1 A. E. R. p.170, at p.175) and the speech of Lord Uthwatt in London Passenger Transport -v- Upson (1949 A. C. p.155 at p.175). Dymond -v - Pearce (1972 1 Q. B. p.496), referred to by the trial judge, is distinguishable. There the defendant who had parked his lorry with its lights on underneath a street lamp close to the kerb, had not created any danger for other traffic. His lorry was not an unforeseeable obstruction, as Allen's was in its position across two lanes of the road. The Eurymedon (1938 P. p.41) is nearer to the present case. There the plaintiffs' ship lay at anchor in a dangerous position athwart the fairway of the Thames. Her position was indicated by lights which those in charge of the defendants' ship should have identified as anchor lights in time to avoid a collision. They did not do so because they were not expecting to find a ship in this unusual position. Both ships were held responsible for the collision. The position of Allen's lorry in the present case was at least as unusual as that of the plaintiffs' ship in the Eurymedon . The judgments of Lord Justice Denning in Davies -v- Swan Motor Co. (Swansea) Ltd . (1949 2 K. B. p.291) and in Harvey -v-The Road Haulage Executive (1952 1 K. B. p.120) are also in point and support my conclusion. I doubt if I would have given the same verdict as the jury in Marvin Sigurdson -v- British Columbia Electric Railway Co. Ltd . (1955 A. C. p.291), who found the unobservant street car driver solely to blame for his collision with the plaintiff's car which was stationary across the track. The judgment of the Privy Council restoring that jury's verdict does not compel us to decide the present case in Allen's favour. I would hold Allen as well as Squires responsible for the collision which caused Rouse's death, and would fix his share at 25 per cent and Squire's at 75. This assessment takes full account of Squire's opportunity of seeing Allen's lorry and of avoiding the collision. The trial judge's suggested figure of 10 per cent, for Allen was, I think, wide of the mark and ought to be corrected. It may have been affected by the mistaken view on which he decided the case, that Squires was wholly to blame. I would allow the appeal. LORD JUSTICE BUCKLEY: I agree. I have not at all times during the argument found it easy to see what the right solution to this problem is, but in the end I have arrived at a firm conclusion. I am prepared to accept for the purposes of this judgment the following propositions which I cull from the argument of Mr. Stuart-Smith for the Respondents. Anyone who by a negligent act creates a danger on a highway to other users of the highway can be liable to another user if damage results from the danger so caused. The question whether there is a danger is to be determined by the ordinary test of foreseeability. But for that purpose, when considering how other road users can reasonably be expected to use the road, you are not entitled to assume that they will all exercise the proper degree of care. For instance, one should not proceed upon the assumption that every driver will be able to stop within the limits of his own vision, because common experience shows that people do not always drive in that way. But when there is ample visibility and ample opportunity for the driver of an on-coming vehicle to see and appreciate the nature and extent of an obstruction and to take evasive action, then the obstruction does not constitute a danger, and in such a case there is a break in the chain of causation between the prior negligent act which caused the obstruction and the immediate consequences of the latter negligent act of a driver on the highway who causes an accident. In such a case there is what Lord Birkenhead in The Volute case (1922 1 A. C. p.129) described as "a clear line". I ask myself, therefore, whether in the circumstances of the present case there was a reasonable likelihood that a driver using the north-bound carriageway at the time of this accident with which we are concerned would fail to appreciate the dangerous situation which resulted from Mr. Allen's negligence, or its extent, in time to avoid an accident. In considering that question, I think one must approach it, as Lord Birkenhead in The Volute case said, "somewhat broadly and upon commonsense principles as a jury would probably deal with it", and one must bear in mind that not all users of the highway will be exercising that degree of care and circumspection which constitutes a proper lookout. It is certain that the defendants' driver, Mr. Squires, did not appreciate the dangerous situation, or its extent, in time. He did not appreciate, in the first instance, that the vehicles were in fact stationary; he thought for some time that they were moving. The learned judge considered that he was not justified in having so thought; but he did in fact think so. And when he did appreciate that Mr. Franklin's lorry was stationary and pulled out into the middle lane, he still apparently did not appreciate that that lane also was obstructed. It was only when he got into the middle lane, because he realised that that lane was obstructed, that he put on his brakes even harder than earlier he had done, and that caused him to skid, which caused the accident which resulted in the death of Mr. Rouse. Taking these circumstances into consideration, it seems to me that the right inference from the facts is that the circumstances were not such as to be reasonably likely to bring to the notice of other users of the highway the existence and the extent of the hazard which was presented by Mr. Allen's lorry being across two lanes of the highway in sufficient time to avoid an accident. In those circumstances, this seems to me to be a case in which there is no break in the chain of causation between Mr. Allen's negligence and the accident: there is no "clear line", to use the expression of Lord Birkenhead. Accordingly, I have reached the conclusion that Mr. Allen's negligence did contribute to the accident which resulted in the death of Mr. Rouse. I agree with what has been said by my Lord, Lord Justice Cairns, in regard to Harvey -v- The Road Haulage Executive and B arber -v- British Road Services . I also agree with what has been said in regard to the apportionment of liability, accordingly, the appeal will be allowed and judgment will be entered against the Third Parties for £4,000. (Appeal allowed. Costs to Appellant in Court of Appeal and court below, with interest on 25 per cent, of damages from 10/12/71 and on 25 per cent, of the plaintiff's costs.) BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII