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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 >> Arnesen v Heffey [2002] EWCA Civ 1058 (9 July 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1058.html Cite as: [2002] EWCA Civ 1058

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NORTHAMPTON COUNTY COURT
(His Honour Judge Bray)

		Royal Courts of Justice Strand London WC2 Tuesday, 9th July 2002

1. LORD JUSTICE POTTER:Sir Murray Stuart-Smith will give the first judgment.
2. SIR MURRAY STUART-SMITH:This is an appeal from a judgment of His Honour Judge Bray given on 12th March 2002 at the Northampton County Court. The case concerned a traffic accident. It involved liability only and the judge held that the claimant was entitled to recover 75 per cent of full liability but that he was guilty of contributory negligence to an extent of 25 per cent. The defendant appeals against that judgment.
3. The accident occurred on 12th August 2000, at about six o'clock in the evening. It was a fine day and the visibility was good. The accident occurred on the eastbound carriageway of the M54, which is a two-lane motorway. In the fast lane (the outer lane) there were four cars travelling at about 70 miles per hour. The first was a Vauxhall Corsa driven by the defendant, Miss Heffey, who had a passenger, a Miss Yaskey, sitting in the front passenger seat. She was unfortunate enough to have a blow-out of one of her tyres.
4. The defendant's evidence of what happened then, as contained in her witness statement, was as follows:

"7.I had been travelling in the outside lane. I was passing vehicles in the nearside lane. Traffic in that lane appeared to be fairly heavy. My speed would be somewhere between 60 and 70mph. I cannot recall the exact speed but I was aware that I was not speeding.

8.I became aware of a strange noise coming from the front of my car. It initially sounded as though a plastic bag had caught against something and was blowing in the wind. It sounded rather like a slapping noise. I immediately took my foot off the accelerator and wound my window down a little in an attempt to identify the problem. The next I became aware was the steering wheel began to shudder a little. This became stronger and I realised immediately that I needed to move over to the hard shoulder.

9.I could feel a stronger pull towards the left on my steering wheel. I felt that if I had tried to brake, I might have lost control of the car. I glanced into my rear view mirror and indicated to the left. Cars in the nearside lane were virtually nose to tail and no one would let me in.

10.I was worried that if I tried to force my way across to the left, I might be in collision with one of those vehicles. The shuddering was increasing in the steering wheel and my vehicle was slowing. Traffic to my left was now travelling faster than I was."

5. She then recounted how she put her hazard lights on, came to a stop in the centre of the outer lane and put her handbrake on. She described how shortly afterwards the claimant, who was riding his motorcycle in the fast lane, collided with the nearside of her car.
6. The evidence of Miss Yaskey, the passenger in that car, was much to the same effect. She said at paragraph 9 of her witness statement: "I recall Sian saying that the car was beginning to judder and she thought she had suffered a blow-out. I was then aware of vibration in the car. Sian was able to control the car and we gradually began to slow down. The vehicles travelling in the inside lane continued to pass us. As there were many vehicles passing us, Sian was unable to pull over, it was unsafe to do so. We slowly came to a stop, in the outer lane."
7. The second vehicle, a Vauxhall Cavalier, was driven by a Mrs Smith. Her evidence, as set out in her witness statement, was as follows:

"5.I was in the outside lane of two travelling at about 70mph, certainly no more.

6.Traffic felt reasonably heavy. I had been in the outside lane some time. Traffic in the inside lane was fairly solid but moving a bit slower.

7.I suddenly became aware of a small light coloured vehicle ahead, in the outside lane. Its hazard lights were on.

8.At first, I thought it was reversing, but I soon realised that it was in fact stationary.

9.It was quite a long distance away and I was able to pull over into a gap in the left-hand lane."

8. Then she described how she saw her husband, who was in the car behind, swerving to avoid the accident.
9. The third car was driven by Mr Smith, Mrs Smith's husband. He had three children in the car; his wife had one of the children. They were coming back from holiday. He was driving a Renault Laguna Estate car. He described what happened as follows:

"8.We were in the fast lane of two, travelling at approaching 70mph.

9.My attention was momentarily distracted by my son who was sat in the rear of the car.

10.Traffic was reasonably heavy at the time. Both lanes seemed to be full. I had been in the outside lane, following Trish [his wife] for quite some time.

11.When I looked up, I was suddenly aware of a stationary car in the outside lane ahead of me.

12.I cannot recall seeing the hazard lights on.

13.My instinct was to brake hard. I did so, but realised I was not going to be able to stop. I spotted a gap in the left-hand lane and swerved over, just missing the stationary car."

10. The fourth car was driven by Mr Guhman. He said in his witness statement that the traffic was light. He was the only witness of all those who were called who did think that the traffic was light. He said:

"6.... I cannot recall whether I had overtaken anything in the slow lane.

7.In front of me was, I believe, an estate car.

8.In front of the estate car, I noticed another vehicle, which I believe was a Corsa. I could see its hazard lights were flashing.

9.I realised it was stationary and moved over to the left-hand lane, putting on my hazard lights.

10.The estate car then pulled over in front of me.

11.As he pulled over, two motor bikes came past me. They were going fast.

12.I had slowed down to about 60mph when I saw them come past.

13.I realised they were going to have difficulty in avoiding the stationary car. I beeped my horn and flashed my lights.

14.The one motor bike was slightly in front. He swerved at the last minute and went past the car on its passenger side. [I interpose that that is wrong; it must have been the other side.] I believe he clipped the wing mirror.

15.A second bike did not react or brake but went straight into the back of the car."

11. Another witness who gave evidence was Mr Boot. He had joined the motorway at junction 5. He said in his witness statement:

"6.As I was joining the motorway, I had seen a group of motor cycles in my rear view mirror. I believe there were about 3 or 4 bikes in a group.

7.As I joined the fast lane, they were quite a distance behind me.

8.It was about 6pm. It was clear and fine. The roads were dry.

9.Traffic was reasonably heavy.

10.The motor bikes were working their way through the traffic, passing inside the outside vehicles.

11.I was travelling at about 70mph.

12.The bikes were steadily passing vehicles without causing any particular problems."

12. Then his wife drew his attention to the stationary car. He said:

"14.By this time, the bikes had passed me and were approximately 150 metres ahead of me.

15.As my wife spoke to me, I saw a dark coloured Laguna, about 4 cars ahead of me, swerving to the inside lane.

16.As the Laguna swerved, I saw one of the motor bikes, which had been behind the Laguna, collide with the rear of the stationary car ..."

13. That, in essence, was the evidence of the witnesses who gave evidence, other than the claimant and Mr Grimshaw, who were both riding their motorcycles. Mr Grimshaw said that he was about two car lengths behind the Laguna and that the claimant was about one car length behind him. He managed to get between the offside of the stationary defendant's car and the crash barrier in the middle of the road. The claimant, Mr Arnesen, who was riding a very powerful bike, said that he was more or less alongside Mr Grimshaw or slightly behind him.
14. The judge, in his very brief judgment (which to my mind is its sole merit), did not refer to any of that evidence or analyse it in any detail at all. He concluded that the defendant should have had time to pull over to the nearside and get onto the hard shoulder; alternatively, she should have pulled more towards the central reservation and, had she done so, the accident would not have occurred. What he said was this:

"The Defendant suffered a blowout while travelling at about 60 or 70 miles an hour in the offside lane and one can imagine that this must have been a very nasty experience for her and one that required very quick reactions. I have every sympathy with the Defendant who may well have been in a state of some shock at the time."

15. He said that the defendant gradually slowed down. He did not accept that she was unable to pull over to the left. He said:

"I am satisfied that she could have moved over to the left in the circumstances. Other vehicles were able to do this to avoid her. It would have meant driving her vehicle with a tyre in a very poor state, but, nevertheless, that could have been done, as in my judgment the traffic was not that congested. I am sure that she could have moved over to the left.

I also find that she certainly could have moved off the road to the right to the central reservation. There was an area, about the width of a car, which would have taken her vehicle pretty well off the road if she had chosen to park it right against the central reservation. It is clear that there was room here, because one of the motorcyclists, Mr Grimshaw, was able to pass her on the offside and get between her and the central barrier.

Instead of moving the vehicle, she stayed with the vehicle, blocking, effectively, the fast lane in fairly reasonably congested traffic and one can only imagine what a dangerous obstacle her car became. If she had moved over, I am quite satisfied that both these motorcycles could have avoided her car, in addition to the other vehicles."

16. There appears to be some inconsistency between the first passage, where he says that the traffic was not congested, and the last passage, where he says that it was reasonably congested.
17. But be that as it may, the criticism which Mr Sanderson, on behalf of the appellant, makes is that there was really no evidence whatever to justify the judge's conclusion that it was possible for her to drive to the nearside and get onto the hard shoulder. There was no evidence other than that the traffic was reasonably heavy on the nearside, except for Mr Guhman, who said that it was light.
18. There was no evidence, to my mind, which contradicted the evidence of the defendant and her passenger that it was not possible to get into the nearside and get onto the hard shoulder. The judge's reasoning that, because the two cars behind were able to pull to the nearside, that meant that the defendant would have been able to do so too, is in my judgment completely fallacious. It is one thing to pull into the nearside through a possible gap in the traffic if you are travelling slightly faster than the traffic on the nearside. It is a very different matter to do so when your car is clearly suffering from a blow-out; when you are struggling to keep it on a straight course and to control it completely, and when you are travelling at a slower speed than the traffic on the inside lane.
19. It seems to me that there is absolutely no basis whatever for the judge to reject the defendant's evidence that she was unable to pull into the nearside and get onto the hard shoulder, in spite of the fact that she wanted to. As I have indicated, all the evidence, both in the witness statements and in the evidence given orally, indicates that there was a stream of traffic in the nearside lane. To my mind, therefore, the judge's principal conclusion was wholly flawed and is unsustainable.
20. The judge also concluded that, in the alternative, she should have driven to the right and onto the central reservation (if that is the correct word). There was about four feet between the offside of her vehicle and the crash barrier when she came to rest. To my mind, that really was a counsel of perfection in the circumstances. First, it was never pleaded that that is what she ought to have done; it was pleaded that she should have moved onto the hard shoulder.
21. Secondly, although there were questions put in cross-examination about the distance between her vehicle and the crash barrier which established that there was about four feet, it was never put to her in terms that that is what she ought to have done. She said this in cross-examination:

"Q.Miss Heffey, you have heard Mr Grimshaw this morning and he got, as we know, between the central reservation and the offside of your car.

A.Yes.

Q.He said that was a distance of about four feet. You accept, do you not, that you could have moved your car into that gap?

A.I do not really, no.

Q.Why not?

A.The reason I do not accept it is because there was not a dip or a ditch for my car to roll into and my car came to a halt. I did not choose to stop where my car stopped. The car halted as it was and within seconds of it halting there was the collision, so it all happened within split seconds."

22. A little later on she said:

"My main concern was to get across to the hard shoulder which I had been unable to do. Therefore I did not have the opportunity to go into a dip, as you are suggesting."

23. The dip is the area between the offside of her car and the crash barrier.
24. To my mind, if the judge had properly analysed the evidence, he could not have concluded that the defendant, presumably after she came to a halt on the road, had the time or the opportunity to move her car to its right. It seems to me that it is highly likely that, had she done so, Mr Grimshaw would in fact have collided with her; but that may be a question of speculation. It seems to me that the judge was putting far too high a standard on the defendant by saying that, in the very short time that elapsed between her coming to a halt and the collision occurring, it ought to have occurred to her to move to the right a few feet and get onto the central reservation or the area to her right.
25. To my mind, therefore, the judge's conclusions, both as to her ability and the fact that she ought to have got onto the hard shoulder or, alternatively, moved to her right, do not sustain examination. For those reasons I would hold that the finding of negligence against the defendant really cannot be upheld.
26. It seems to me also that the judge was far too lenient in his finding of contributory negligence against the claimant. The fact is that the only people who were driving along in the fast lane who did not see and appreciate what was happening were the two motorcyclists. The other drivers (albeit, in Mr Smith's case, far too late, but he did ultimately appreciate it) realised that there was some obstruction ahead and moved into the nearside lane to avoid it. The reason why the claimant and Mr Grimshaw did not appreciate this was either that they were not keeping a proper look-out or that they were driving too close to the vehicle in front, Mr Smith's Laguna, or a combination of the two. To my mind, two to three car lengths behind that vehicle was far too close to drive on the fast moving lane of the motorway. It was asking for trouble. It is also quite contrary to the advice given in the Highway Code that there should be a two second interval, which in this case would have been a seventy yard gap between the vehicle in front.
27. As Mr Sanderson points out, if they had complied with the Highway Code, these two motorcyclists would not have been riding, in effect, side by side anyway. They should have been one behind the other, with a seventy yard gap between them. That may have been a counsel of perfection, but at any rate in my view they were travelling far to close to the car in front. They gave themselves no margin of appreciation if anything went wrong ahead. Consequently, they were quite unable to deal with the emergency created really by Mr Smith unfortunately not appreciating the hazard until a late stage and then swerving at the last minute in the way that he did.
28. I think that the judge, as I have said, was quite wrong to criticise the defendant in the way that he did. She was presented with an emergency which was not her fault. She in fact did well, in my view, to control the car at all in circumstances such as these. There was no basis for saying that her evidence that she could not move to the left was wrong. In my judgment the responsibility for this accident, unfortunately, rests upon the claimant and not upon the defendant.
29. For those reasons I would allow the appeal.
30. LORD JUSTICE JUDGE:I agree with Sir Murray Stuart-Smith. I add something of my own because we are disagreeing and setting aside Judge Bray's decision.
31. The judge was sympathetic with Miss Heffey. I share his sympathy. I cannot share his conclusion that she was negligent.
32. As Miss Heffey was driving along the fast lane of a motorway she suffered an unexpected tyre blow-out. In traffic, and at speed, that is a thoroughly alarming experience. To her credit, she brought her juddering car safely to a halt in a straight line and, as she did so, she turned on her warning hazard lights, giving sufficient warning to the vehicles immediately behind her, who were able successfully to take avoiding action. In my judgment, in those circumstances nothing more could reasonably have been expected of her. She ended up stationary in the fast lane for a very brief period before Mr Arnesen's motorcycle crashed into the rear of her car.
33. The judge said in his judgment:

"Instead of moving the vehicle, she stayed with the vehicle, blocking, effectively, the fast lane in fairly reasonably congested traffic and one can only imagine what a dangerous obstacle her car became. If she had moved over, I am quite satisfied that both these motorcycles could have avoided her car, in addition to the other vehicles."

34. There was no direct evidence to justify the judge's conclusion that Miss Heffey failed to take advantage of any reasonable opportunity safely to pull across from the fast lane into the slow lane and then over onto the hard shoulder. The direct evidence at the critical point was that the slow lane was busy, and the judge did not expressly reject it; so his conclusion was based on inference.
35. It simply does not follow from the fact that other vehicles observing her predicament (but not sharing it) were able to adjust their lines by pulling over into the slow lane that she was negligent in failing to get over onto the hard shoulder. They were moving at the speed at which they were travelling without any hindrance. She was slowing down, in difficulty, and eventually became stationary. She had to wait for a much more significant gap in the traffic than they would have done; and they had not had the awful experience which she had just suffered. By the time she became stationary she was becalmed with her flat tyre, and even more time would have been needed before she thought to drive across from the fast lane to the slow lane and then onto the hard shoulder, crossing traffic which was travelling at about 60 miles an hour or more.
36. Like Sir Murray Stuart-Smith, I do not accept the unpleaded criticism that she should instead have manoeuvred her car into, or close up to, the central reservation. I shall not repeat his reasons, but I emphasise that this is not a pleading point. The omission from the pleading of any criticism of this kind reflected a fair assessment of the practical realities and, in this context at any rate, first thoughts were best.
37. These accidents happen from time to time. That is why those who use the motorway should leave sufficient space in front of them and keep a proper look-out. The judge may well have been right when he observed that many vehicles do indeed travel too close to the vehicles in front of them on motorways. When they do so, however, they are not driving safely. If there is a collision with a stationary vehicle, they are (normally, at any rate) to blame either for driving too fast or too close to the vehicle in front, or for failing to keep a sufficient look-out, or for a combination of those criticisms: quite how much to blame depends on all the circumstances, including the circumstances in which the vehicle with which they have come into collision has itself come to be stationary.
38. In my judgment, if apportionment had arisen for decision at all, I should have reversed the judge's assessment of the blameworthiness of the respective parties. But, as I emphasise and I have already said, in my judgment Miss Heffey was not negligent.
39. LORD JUSTICE POTTER:I agree with both judgments.
40. The judge gave no chapter and verse for his finding that there was a sufficient gap in the traffic to the defendant's left after her blow-out; and it was quite unjustified on the evidence (whether in the form of the witness statements, which have been referred to by Sir Murray Stuart-Smith, or the oral evidence, of which we have been supplied with a transcript). The judge found that the defendant was a witness who had endeavoured to tell him the truth. She was wholly supported by her passenger, who spoke of her care generally as a driver and on that occasion. Their evidence was clear and it was consistent with the evidence of other witnesses as to the general state of the traffic: i.e. a steady stream in both lanes, the nearside lane moving somewhat slower than the offside lane. In that state, as the defendant slowed after her blow-out, there was simply no reason to doubt that she was unable to get into the nearside lane.
41. The assertion that, in the event, having failed to get across to the nearside lane and the hard shoulder beyond, she should have driven her car partly onto the few feet of central reservation to her right so that the obstruction of the offside lane was reduced, was an allegation which had not been pleaded and was, in essence, an afterthought. Furthermore, there had been no chance for reflection by the defendant following her coming to a halt before the accident happened seconds later.
42. In my view there was no basis in the evidence for the finding of liability. The cause of the accident was the failure of the claimant to keep a proper look-out on the road ahead as he travelled at speed and to observe either the obstruction ahead with its hazard lights on or the successful avoiding action of Mrs Smith, in the leading car behind the defendant, to get round the hazard which was there. He was also too close to Mr Smith's car to be able to take the same avoiding action which Mr Smith took.
43. I would therefore allow the appeal.
Order: appeal allowed; counsel to agree a minute of order.