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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 >> Henderson v Cooke [2002] EWCA Civ 1557 (21 October 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1557.html Cite as: [2002] EWCA Civ 1557

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHICHESTER COUNTY COURT
(HIS HONOUR JUDGE BARRETT)

		Royal Courts of Justice Strand London, WC2 Monday, 21 October 2002

1. LORD JUSTICE ONE: This is an appeal with the permission of Potter LJ from a judgment of His Honour Judge Barrett QC given in the Chichester County Court in which he held the appellant motor cyclist and the respondent driver equally to blame for an accident which occurred on 7 August 1998 in the Isle of Wight. The appellant contends that he was not in any way, alternatively much less, to blame than the respondent.
2. The accident took place at about midnight on a straight stretch of the A3054, Yarmouth to Newport, road near to its junction with Whitehouse Road. The road is unlit and subject only to the national speed limit. Warnings of the junction ahead are given by a sign on the road side and painted "Slow" signs on the road surface.
3. It was a fine night. The appellant was riding his Yamaha 600cc motorcycle with his girl friend as pillion, in the direction of Newport. Whitehouse Road was on his left. As the respondent turned out left from that road in his Renault 25 onto the main road behind a slow moving van which he proceeded to overtake, his car was struck on its offside passenger door by the motorcycle. The motorcycle flew over the hedge and the appellant and his passenger were injured. The point of impact was about 50 metres from the junction.
4. The appellant's case was that, as he came over the brow of the hill leading down to the junction, which lay about 130 meters ahead, he saw the respondent's car pull out of the junction. His headlight was on dipped beam. He reduced speed, indicated his intention to overtake both vehicles ahead and started to do so when the respondent indicated and immediately pulled out to overtake into his path, giving him no chance of avoiding the collision.
5. The respondent said that he looked in his mirrors, saw nothing, indicated, pulled out to overtake and was struck by the motorcycle when he was alongside the van. His case was that the motorcycle was travelling much too fast and had attempted to overtake when the two vehicles ahead of him were abreast.
6. There were a number of independent witnesses, the most important of whom was Mr Williams. He was also travelling in the direction of Newport when he was overtaken by the motorcycle on the brow of the hill. The motorcycle was, he said, travelling at 70 to 80 miles an hour and remained on its offside as it went down towards the junction and the two vehicles ahead. It did not brake or indicate before attempting to overtake. The collision occurred when the Renault was about three quarters of its length alongside the van.
7. Another witness had been overtaken by the motorcycle shortly before the collision. He was travelling at about 60 miles an hour. It went past him, he said "as if I was stopped."
8. A joint expert's report was before the court. It said that if the motorcycle had been travelling at 70 to 80 miles an hour, the appellant would not have seen the Renault emerge from the junction. That would only have been possible if the motorcycle had been travelling at about 40 miles an hour. Whatever speed the motor cycle was travelling, however, the respondent should have been able to see its light before he started to overtake. The damage to his car indicated that it was at an angle to the motorcycle at impact. This was consistent with it being at the start of its overtaking manoeuvre when the collision occurred.
9. Having rehearsed the evidence, the judge said he based his decision largely on the evidence of Mr Williams. He then made a number of findings. The appellant had been travelling at high speeds in excess of the speed limit for much of his journey. After coming over the brow of the hill, he remained on the offside of the road in order to pass the two vehicles ahead of him which had already emerged from the junction. Although he throttled back he was going too fast and wrongly concluded that he could get past the two vehicles at the speed he was travelling. He was some distance from the respondent's car when he first observed it beginning the process of overtaking. He was, as the judge said, not riding "at a speed commensurate with the essential risks, of which he was well aware". He did not "take avoiding action, brake or conduct himself as any reasonable, sensible motor cyclist would do in such circumstances." This was partly attributable to the fact that he was found to be only just under the alcohol limit after the accident.
10. The respondent, however, was also to blame because he could and should have seen a motorcycle approaching fast on his offside as he made his decision to overtake. He had begun to overtake, having indicated his intention to do so, but had not got very far into the process when the collision occurred. He was at something of an angle at that moment and not as far into the overtaking as he and Mr Williams had said.
11. The judge said that apportionment was difficult, but the motorcycle had the opportunity to avoid the collision because he had first seen the car begin the overtaking process when he was some distance away. Equally, the respondent should not have pulled out because he should have been aware of a bright light and fast vehicle coming upon him as he emerged into the main road. The judge said:

"Doing the best I can, I have come to the conclusion that this in fact was an accident to which each of them contributed the same degree of negligence. One was driving too fast. The other did not observe what he should have seen."

12. Mr Dignum, counsel for the appellant then as now, submits that the judge should not have found that the appellant was travelling too fast because the appellant's evidence, supported by his pillion passenger, was that he had seen the respondent's car emerge from the junction. On the calculations which the expert had performed, he could not have been travelling at more than about 40 miles an hour.
13. The appellant's own evidence about his speed was inconsistent, but Mr Dignum says that the judge should have accepted this submission. I do not agree. The judge obviously rejected the appellant's evidence. He and his pillion passenger had said they had seen four cars emerge from the junction. They could not possibly have done so whatever speed the motorcycle was travelling at. The evidence that the appellant was going too fast was overwhelming, not only from the eye witnesses but also from the resultant position of the motorcycle.
14. Mr Dignum makes a subsidiary complaint about the judge attaching significance to the fact that the appellant was found to be just below the alcohol limit after the accident. He submits that there was no evidence of impairment, therefore, the judge was not entitled to add that as a reason for his conclusion. Again I cannot accept that submission. The judge was perfectly entitled to infer from that fact that the appellant may have been travelling faster and without the degree of care which he should have exercised as a result of the effects of alcohol.
15. Mr Dignum's main complaint, however, is of the judge's finding that the respondent begun the process of overtaking when the appellant was some distance away. He submits that the evidence was all to the effect that the car pulled out into the path of the motorcycle just as it started to overtake. This was consistent with the angle of impact and what the respondent said in cross-examination -- he indicated and pulled out "practically simultaneously" -- and the appellant's own evidence about how he had no time to avoid the collision. Mr Dignum submits that this was why the appellant did not brake or take any other avoiding action. He simply had no time to do so. His speed was not therefore causative of the collision which would have happened in exactly the same way even if he had been travelling at a much lower speed.
16. Before getting involved in the detail of this submission, it is worth noting that at 70 miles an hour a vehicle is travelling at 30 meters every second. At this speed it would only have taken about 5 seconds for the motorcycle to travel the whole distance from the brow of the hill to the point of impact. Anyone coming upon two slow moving vehicles at this speed ought to have slowed down considerably and anticipated that one might overtake the other. On the judge's finding the motorcycle relied solely on his speeding approach to warn the vehicles ahead of his intention to overtake. He did not brake, he did not indicate, he did not hoot or flash his headlight.
17. Whilst the respondent candidly admitted that he had not seen the motorcycle and that he had pulled out almost immediately after he had indicated his intention to do so, his inattention must be seen in the very short timeframe in which all this happened. Mr Williams, who had a grandstand view, said that he saw the car start to indicate some time before it pulled out.
18. On any sensible view of these facts, the motorcycle's speed and determination to overtake must have been substantially causative of the accident. Those at the scene, including Mr Williams, felt that the appellant was solely to blame.
19. For these reasons, I do not accept Mr Dignum's submissions and his analysis of where the evidence should have left the judge. Once the conclusion is reached that the appellant's speed was substantially causative, the judge's apportionment is unassailable. Apportionment is very much a matter for the trial judge with which this court seldom interferes, as the cases which have been put before us demonstrate.
20. For these reasons I would dismiss this appeal.
21. LORD JUSTICE LATHAM: I agree.
22. SIR DENNIS HENRY: I also agree.
ORDER: Appeal dismissed with costs on the standard basis in favour of the respondents. (Order does not form part of the approved judgment)