Case No: B4/2011/1800
Neutral Citation Number: [2012] EWCA Civ 375
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT 
(QUEEN’S BENCH DIVISION)
(MR JUSTICE PARKER)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Monday, 20th February 2012
Before:

LORD JUSTICE CARNWATH
LORD JUSTICE DAVIS
and 
SIR STEPHEN SEDLEY
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	Woodham
	
Applicant/
Claimant	
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JM Turner t/a Turners of Great Barton and Peterborough City Council

Respondent/
Defendant	
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(DAR Transcript of 
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Mr Shaun Ferris (instructed by Herzog & Associates) appeared on behalf of the Applicant.

Mr David Melville QC (instructed by Kester Cunningham John Solicitors) appeared on behalf of the Respondent.
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Judgment
Lord Justice Davis:  

	Introduction

1.	The defendant’s employee, Miss Turner, now Mrs McCarter, was driving a school bus on the afternoon of 8 October 2007.  As she sought to turn right from a side road in a gap left between queuing traffic onto the A143 at Great Barton in Suffolk, the claimant, Mr Woodham, was riding his motor bicycle along the A143 overtaking stationary traffic on the off-side.  There was a collision and Mr Woodham suffered grievous injuries.  
2.	On 27 July 2010 he issued proceedings.  He seeks damages in excess of £2 million.  He claims that the accident was the entire responsibility of Miss Turner.  By their Amended Defence, the defendants attribute entire responsibility to Mr Woodham.  But in the alternative, it was said that there was contributory negligence on his part.
3.	There was a trial on the issue of liability before Kenneth Parker J, sitting in the Queen’s Bench Division.  By a reserved judgment handed down on 21 June 2011 the judge attributed 70 per cent of the liability for the collision to Miss Turner and 30 per cent to Mr Woodham.  
4.	The defendant sought permission to appeal and the judge himself refused permission.  Dame Janet Smith refused permission on the papers to appeal against the finding of negligence, ruling that there was no prospect that the Court of Appeal would interfere with the judge’s conclusion that both drivers were negligent.  There has been no attempt to renew the application with regard to that.  But Dame Janet Smith did grant the defendant permission to appeal with regard to the apportionment of 70 per cent as against Miss Turner.
The facts

5.	The background facts are set out with exemplary clarity in the judgment below.  They can perhaps be re-summarised in this way.  Miss Turner is an experienced school bus driver and she was, at the time, working for the firm Turners of Great Barton.  At around 4.40 pm on Monday 8 October 2007, she was driving a 24 seat Mercedes Vario coach south down a minor road called School Road into the village of Great Barton.  The school coach was by now empty, apart from herself, and she was returning home.  The design of the coach is such that it has a length of bonnet protruding beyond the driver’s seat.  The weather was overcast but dry.  
6.	School Road joins the A143, a single carriageway road, in Great Barton at a T-junction.  It is almost directly opposite another junction on the other side of the A143.  The A143 itself runs approximately north-east to south-west, with Ixworth to the north-east and Bury St Edmunds to the south-west.  Miss Turner was intending to turn right onto the A143 in the direction of Bury St Edmunds.  The minor road, that is to say School Road, inclines slightly to the left at the T-junction with the A143.  There are “Give Way” markings at the junction.
7.	As it happened, there had for a period of time been roadworks on the A143 with temporary traffic lights installed to the north-east of Great Barton.  This had had the effect of causing traffic queues in that direction.  And so it was that afternoon.  The traffic was queuing away to Miss Turner’s left on the A143 up to the temporary traffic lights as she came down School Road to the Give Way markings at the T-junction.  The traffic was also queuing back on her side away to the right.  The opposite side of the A143 was clear of traffic as she drove to the T-junction.  
8.	Immediately to her right on the A143 was a very large Claas tractor towing a very large trailer for sugar beet.  It occupied the greater part of the width of the left-hand carriageway.  The driver of the tractor was Mr Hatton.  He was familiar with the road. He had purposely halted the tractor a little way short of the T-junction and had done so shortly before Miss Turner herself came up to the T-junction. In the course of cross-examination, Mr Hatton was to say that he had stopped his tractor so as to leave a gap “because there is a crossroads there and you don’t know if people want to go in and out or whatever”.  Behind Mr Hatton’s tractor and trailer was a lorry, and behind that again, a lengthy queue of stationary vehicles waiting to move forward when the temporary lights further up the A143 turned green.  

9.	Shortly before the T-junction to the south-west, there is a pelican crossing on the A143.  That, as well as having traffic lights, was marked in each direction by zigzagged white lines at the side and in the centre of the roadway.  

10.	The claimant, Mr Woodham, was 16 at the time of the accident.  He had relatively recently obtained his licence.  He had acquired a Derbi GPR motorcycle in July 2007.  It was very lightly powered, 50cc, and some witnesses in fact described it as a moped or as a scooter.  Its front lights automatically would come on when the engine was started.  That afternoon he was returning from college, riding north-east in the direction of Ixworth on his motor bicycle.  In the event, Mr Woodham had, as was accepted, no subsequent recollection of any of the events of that day and he did not give evidence at trial.  But important evidence was given by a friend of Mr Woodham, a Mr Jake Gladwish, who was also 16 at the time and was studying at the same college.  His evidence was that the A143 in this vicinity was very familiar both to Mr Gladwish and to Mr Woodham (and the judge so found).  Both at the time lived in the area and they would ride up and down it a lot together.  It would also be one usual route for them to go to and from college.
11.	On the afternoon of the day in question, Mr Gladwish left college on his own scooter, riding eventually north-east through Great Barton along the A143.  He was aware from previous journeys of the temporary traffic lights for the roadworks and was expecting traffic queues.  As he approached the village, he stopped behind the traffic.  However, he then saw a number of motor bicycles overtaking on the offside, filtering past the stationary traffic.  He then also recognised Mr Woodham on his motorcycle go past him, also filtering past the stationary traffic; and as the traffic was either stationary or very slow moving, Mr Gladwish himself decided to follow suit, his being the next motor bicycle immediately behind Mr Woodham’s.
12.	Both motor bicycles approached the pelican crossing, filtering past stationary traffic on the off-side.  Mr Gladwish was to estimate that he was doing around 25 miles per hour.  He said that he passed two motor bicycles, which by now had pulled in by the traffic near the pelican crossing.  He described how Mr Woodham’s motor bicycle, keeping within the central line of the carriageway, slowed, the brakes being applied, as it approached the pelican crossing.  But it then started to accelerate away as the lights at the pelican crossing were green.  He thought it was going around 20 to 25 miles per hour.
13.	Mr Gladwish had himself observed Mr Hatton’s tractor and trailer stopped just past the pelican crossing lights and before the T-junction.  Mr Gladwish decided to pull in behind the tractor and trailer.  He said that he did so because he did not like filtering anyway and also because, as he put it, he had had “bad experiences” with tractors.  In the course of cross-examination, he further accepted that he would also have taken into account the possibility of traffic emerging from the T-junction in the gap which he had observed had been left by Mr Hatton’s tractor.  Mr Gladwish further accepted that he had assumed that Mr Hatton may have stopped as he did to let somebody out of School Road.
14.	Mr Woodham, however, unlike Mr Gladwish and other motor bicyclists, did not stop, but continued filtering past Mr Hatton’s tractor and trailer on the off-side, close to but not beyond the central line of the carriageway.  If Mr Woodham did not cross the central line, he must have been passing very close to the tractor and trailer of Mr Hatton, given their width and given that they filled much of the carriageway.
15.	At that time, Miss Turner in the school coach had decided to move forward into the gap purposely left by Mr Hatton, out into the A143 with a view to turning right.  As the judge found, her visibility of Mr Woodham’s motor bicycle and his visibility of her school coach would have been restricted severely by Mr Hatton’s stationary tractor and trailer.  There would have been a sightline over the top of the tractor’s off-side front wheel and mudguard, but all other parts of the very large tractor would have blocked their views.
16.	Miss Turner did not move out from the T-junction into the A143 at a 90 degree angle.  Instead she angled the coach towards the right, Mr Hatton having left quite a sizeable gap, as she moved into the A143.  This was to facilitate her final right turn onto the opposite lane of the carriageway leading towards Bury St Edmunds.  The evidence, accepted by the judge, was that she was moving very slowly, in effect edging forward, and constantly looking both to left and to right.  To the left she could see that the carriageway was clear.  It was not established, and the judge made no finding, as to whether she moved forward in one continuous movement or in stages with pauses between successive movements.  In the event, Mr Woodham’s motor bicycle collided with Miss Turner’s coach, striking the front off-side of the vehicle; albeit it was agreed by the experts that the first part of the coach that would have been visible to Mr Woodham would have been the front near-side, in view of the angle at which the coach had been entering the major road.
17.	The judge found that Miss Turner did not become aware of the presence of the motor bicycle until it struck the coach.  There was no physical evidence of any braking on the part of the motor bicycle, although there was some evidence of steering to the left by the motor bicycle just before the collision.  The judge analysed the evidence.  He found that the speed of the coach at the time of the collision was approximately 3.5 miles per hour.  The expert witnesses were agreed that the speed of the motor bicycle at the actual moment of impact was “probably around 20 miles per hour”.  The judge further found that the point of impact was close to the road’s centre line markings.  Miss Turner then applied emergency braking.  The judge found that the coach would have been in further motion for not less than 0.5 to 1 metre before coming to a final stop.  The judge also found, assessing the expert evidence, that given that the coach was moving slowly, the motor bicycle would have needed to be driven at 15 miles per hour or less to have enabled the bicyclist to have stopped or to have avoided the coach in time.  
18.	The emergency services were called speedily.  It emerged that, very sadly, Mr Woodham has been rendered paraplegic as a result of the accident.  Although he was wearing a helmet, he suffered, amongst other things, head injuries, his head having struck the windscreen of the coach close to the base of the off-side pillar.  There were thoracic spinal fractures, including a cord transection at T6.
The cases advanced
19.	The claimant’s case as pleaded placed particular emphasis, amongst other things, on the alleged negligence on the part of Miss Turner in steering out into the A143 in the gap left by Mr Hatton and his tractor, when she could not see to her right; in failing to wait until the tractor had moved on and, when it was safe, to cross right into the opposite carriageway; and in failing to see or hear Mr Woodham’s motor bicycle or to appreciate that users were likely to filter past the stationary tractor.  The Amended Defence on the other hand placed particular emphasis on the alleged negligence on the part of Mr Woodham in driving too fast and in taking no heed of the fact that he was filtering past stationary traffic when he knew that he was approaching a T-junction and was nearby a pelican crossing.  It was said that Miss Turner acted entirely appropriately in moving forwards slowly to get a better view, to make sure that it was safe to cross onto the opposite side of the carriageway.
20.	Reference was made by counsel to the trial judge, as it has been to us, to extracts from the Driving Standards Agency Guide to Driving Buses and Coaches.  Further reference has been made to parts of the Highway Code.  The following passages in particular may be noted.  Reading from the Driving Standards Agency Guide at page 154 under the heading, “Bends And Junctions” this, amongst other things, is said:

“ Emerging
‘Emerging’ is when a vehicle leaves one road and joins, crosses or turns into another.  You’ll have to judge the speed and distance of any traffic on the road you intend to emerge into, and only continue when it’s safe to do so.  
This needs care and sometimes patience as well.  
When to go
You have to decide when to wait and when it’s safe to go.  That decision depends largely on your zone of vision.  
...
You can only decide whether to wait or go on when you have put yourself in a position where you can see clearly… 
Remember  
An approaching vehicle, particularly a bus or a lorry, can easily mask another moving vehicle which may be overtaking.”
21.	Then, a little further on, at pages 160 and 161, this amongst other things is said, under the heading, “Effective Observation”:

“Just looking is not enough!… 
However, because of its size and design, a bus will have many more blind spots than many smaller vehicles.”
And at page 161, under the heading, “Observation at Junctions”:

“Despite your higher seating position, there will still be some junctions where you cannot see past parked vehicles, or even road signs… 
If you still cannot see any oncoming traffic, you will have to ease forward until you can see properly without coming too far into the path of approaching traffic.  
Remember that some road users are more difficult to see than others -- particularly cyclists and motor cyclists.”
A little later:
“Never find yourself having to say, ‘Sorry but I didn’t see you coming!’”
Further passages were referred to us from the literature.  Amongst other things, this was said at page 146 from the Guide:

“If you still cannot see properly you will have to ease forward until you can do so, without emerging too far out into the path of approaching traffic.  Remember, some road users are more difficult to see than others, particularly cyclists and motor cyclists… 
Remember, if you don’t know, don’t go.”
Then a little further on:

“Many incidents occur because drivers fail to notice motor cyclists, so look out for them when 
•	emerging at junctions...
•	turning into a road on your right -- the motor cyclist may be following, overtaking or meeting you.  Oncoming motor cyclists may be particularly difficult to see if they are following a larger vehicle.”
22.	We were referred also to passages from the Highway Code.  In particular, we were referred to these passages.  Rule 88 says with regard to manoeuvring:
“Manoeuvring. You should be aware of what is behind and to the sides before manoeuvring. Look behind you; use mirrors if they are fitted. When in traffic queues look out for pedestrians crossing between vehicles and vehicles emerging from junctions or changing lanes. Position yourself so that drivers in front can see you in their mirrors. Additionally, when filtering in slow-moving traffic, take care and keep your speed low.”
At Rule 167, this is said:

“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… 
•	where traffic is queuing at junctions or road works”
Rule 211, relating to motorcyclists and cyclists, amongst other things says this:
“It is often difficult to see motorcyclists and cyclists, especially when they are coming up from behind, coming out of junctions, at roundabouts, overtaking you or filtering through traffic. Always look out for them before you emerge from a junction; they could be approaching faster than you think. When turning right across a line of slow-moving or stationary traffic, look out for cyclists or motorcyclists on the inside of the traffic you are crossing. Be especially careful when turning, and when changing direction or lane. Be sure to check mirrors and blind spots carefully.”
The judgment
23.	In assessing whether Miss Turner was in breach of her duty of care owed to Mr Woodham, the judge rejected the suggestion that she should have turned left and then made a U-turn later.  He further rejected the suggestion that she should have heard the motor bicycle.  But he found that Miss Turner was at fault in moving forwards, even if very slowly, into the gap when she simply was not able to see whether or not a road user was filtering on the off-side of the stationary traffic.  The judge referred to the relevant parts of the Code and the Guide, which I have summarised today.
24.	The judge then referred at paragraph 20 of his judgment to what he described as the “dilemma” facing Miss Turner.  He described her as advancing forward cautiously and looking to left and right; but the tractor, as she knew, was large and obscured her view to the right.  The size and position of the tractor and the configuration of her vehicle with the short bonnet ahead of the driving position made it likely that if she continued to advance through the gap, even very slowly, she would be advancing “blindly” in the path of an overtaking motor cyclist.  The judge indicated that a collision was reasonably foreseeable, even if the motor cyclist was overtaking at a very low speed.  The judge indicated also that this did not amount to a counsel of perfection.
25.	The judge went on to state that Miss Turner had obvious alternatives that would have eliminated or substantially reduced the risk of collision.  He found that she could simply have waited, given the nature and size of the vehicle that was potentially blocking her view to the right.  He rejected a submission by Mr Ferris of counsel, appearing on behalf of the defendant, that the situation would simply have repeated itself.  The judge indicated that it might have repeated itself but there was a reasonable prospect that, at the next change of lights, a smaller vehicle would have taken the place of the tractor.
26.	The judge went on to say, “even more importantly”, Miss Turner had advanced into the A143 at an angle to the oncoming traffic, thus making it significantly more difficult for her to have a good sight to her right.  The judge went on to say this:

“The expert evidence showed dramatically that, if Miss Turner had advanced at right angles to the A143, at least 1.5 seconds and possibly more, depending on the Claimant's position in the road, before the actual collision in this case she would have had a view of Mr Woodham and, most importantly, he would have had a view of the coach and, given his speed, would have had a real opportunity of braking to avoid collision.”
In such circumstances, the judge made a finding of negligence as against Miss Turner.
27.	The judge then turned to deal with the question of whether or not Mr Woodham had failed to exercise reasonable care for his own safety and whether such failure contributed to the collision.  The judge, after reminding himself of the relevant parts of the Highway Code, then went on to say this, amongst other things, in paragraph 28 of his judgment.  He found that Mr Woodham knew the relevant parts of the A143 and that the traffic was slow-moving and at times stationary.  The judge expressly found this:

“He also knew, or ought to have known, that the tractor had left a gap at the junction with School Road, and that there was a real possibility that a vehicle could emerge through the gap into his path.”
The judge then went on to refer to and summarise the evidence of Mr Gladwish, which I have already mentioned above.  The judge then said:

“Mr Woodham did not wait behind the tractor. He did not overtake it at a very low speed which would have given him the opportunity, if a vehicle did emerge, of taking evasive action. He overtook at a speed – of about 20mph – that very substantially, and foreseeably, increased the risk of collision and of serious injury, if a vehicle did emerge. As events unfolded, a speed of 15mph or less would have given him a real chance of taking effective action to avoid the consequential collision.”
28.	The judge thus made a finding of breach of duty as against Mr Woodham.  
29.	The judge then in the last three paragraphs of his judgment dealt with the issue of what was the correct division of responsibility.  He expressed his conclusions in these words.  
“31. It seems to me that Miss Turner bears the greater share of responsibility. She was emerging from a minor to a major road, where she was obliged to give way to traffic moving from both directions on that road. She emerged from School Road at an angle that significantly reduced her ability to see traffic on the far side of the obstructing tractor, and she advanced beyond her sight line, creating a real risk of collision with an oncoming and overtaking motorcyclist, however slowly such motorcyclist might have been travelling. She had the obvious alternatives of approaching the A143 closer to the perpendicular or of waiting for a more favourable opportunity to exit from School Road. I acknowledge that she was emerging very slowing and was looking, as best she could, to right and left. But in the circumstances that was not sufficient.
32. On the other hand, Mr Woodham's lack of due heed for his own safety made him substantially responsible for the collision. He was not following the strictures of the Highway Code, and the risk of a vehicle emerging, even at very low speed, from School Road was obvious and foreseeable to any careful motorcyclist.
33. Weighing these factors, I have concluded that Miss Turner should bear 70 per cent liability for the collision, and that Mr Woodham contributed to his own injuries to the extent of 30 per cent.
Submissions
30.	In such circumstances Mr Ferris, on behalf of the appellant/defendant, submits that the apportionment made by the trial judge was manifestly wrong.  Mr Ferris emphasised the provisions of, in particular, Rule 167 of the Highway Code and that its wording is designed to prohibit overtaking where drivers might come into conflict with other road users, for example at a road junction on either side of the road or where traffic was queuing near roadworks: precisely the position here in both respects.  Further, Mr Ferris emphasises that Mr Woodham knew the road well.  He knew of the junction.   He knew about the gap left by Mr Hatton’s tractor yet he elected to filter past the stationary tractor on the outside.  Having so elected, he then did so at a speed of around 20 miles per hour whereby he would not be able to stop in time if a vehicle did indeed emerge through the gap.  Overall, Mr Ferris submits, a greater share of the blame must rest with Mr Woodham than with Miss Turner.
31.	Mr Melville QC, on the other hand, who appeared on behalf of Mr Woodham at trial and has appeared on his behalf on this appeal, submits that the judge was entitled to apportion liability as he did.  He submits that the finding that Miss Turner was more to blame was fully justified.  He made a series of points, in effect reflecting the Particulars of Negligence set out in the claim form, which were designed further to emphasise the asserted negligence on the part of Miss Turner: although Mr Melville rightly accepted that such matters cannot simply be decided by reference to the numbers of ways in which the alleged negligence can be framed.
32.	Mr Melville said, nevertheless, that those factors differentiated the position in terms of responsibility and blameworthiness so far as Miss Turner was concerned, and made her the more culpable; or at least the judge was entitled so to conclude.  He stressed that she could and should have stopped at the T-junction if she could not see; whereas, he asserted, the only real error of Mr Woodham, once he had elected to try to pass the tractor on the off-side, was the speed at which he drove.
33.	Mr Melville also referred us to various decisions of the Court of Appeal whereby it is emphasised that the Court of Appeal will ordinarily be very reluctant to interfere in decisions relating to apportionment of liability.  In particular, we were referred to a decision of the Court of Appeal in the case of Wells v Mutchmeats Ltd [2006] EWCA Civ 963.  At paragraph 15 of that judgment, a proposition enunciated by Brooke LJ in a previous case was endorsed.  It said this:

“It is very firmly established that this court will not interfere with a trial judge's apportionment of responsibility unless it can be shown that he erred in principle, or misapprehended the facts, or he is clearly shown to have been wrong;” 
I should add that, in the course of skeleton arguments, both counsel before us had referred us to a number of other authorities relating to accidents of, broadly speaking, the present kind.  But both of them rightly acknowledged that these cases are fact-specific and I do not think it necessary to refer further to those authorities cited to us.
Determination
34.	In granting permission, Dame Janet Smith stated that she found the apportionment of 70 per cent against Miss Turner “surprising”.  I must say I share that surprise.  In terms of causative potency, Mr Woodham’s actions, as it seems to me, were really as much the cause of the collision as Miss Turner’s.  True it is that Miss Turner was driving a large and heavy coach but that was not really the point.  The point was that her bonnet would be protruding out into the roadway.  The situation is, of course, that this accident would not have happened had Miss Turner only waited; instead she elected to proceed forward at an angle, even if very slowly, through the gap in circumstances where she had no effective view to the right because of the bulk of Mr Hatton’s tractor.  But equally, this accident would not have happened had not Mr Woodham, who was familiar with the road and with the existence of the junction, contrary to the guidance of the Code and contrary indeed to what other motor cyclists were doing at the spot, elected to filter up on the off-side of the stationary tractor: when, as found, as he should have known, there was a gap left by Mr Hatton in circumstances in which vehicles might be expected to be seeking to come out of the junction.  Moreover, he did so at a speed which would be too fast to enable him to stop or take appropriate evasive action in time.
35.	In terms of relative blameworthiness, it thu,s seems to me that, correspondingly, Mr Woodham was really as much to blame as Miss Turner.  As the judge himself stressed, not only did Mr Woodham himself fail to wait, he elected to filter through on the off-side at the speed at which he did.  In the judge’s own words, this “very substantially and, foreseeably, increased the risk of collision and serious injury.”  The word “very” is of note.
36.	I appreciate that the appellate court is indeed ordinarily slow to interfere in a question of apportionment in cases of this kind.  But in my own view, having regard to his primary findings, the judge simply was wrong to attribute the greater share of responsibility to Miss Turner in the way that he did, and was wrong to assess her overall liability as that of 70 per cent.  Moreover, I have concerns that the judge, on the issue of assessing relative responsibility and apportionment, may not have had sufficient regard for those purposes of the potential significance of Mr Gladwish’s evidence.  I am not able to agree with Mr Ferris’s submission that the greater share of responsibility lay with Mr Woodham.  In my view, on the facts of this particular case, there was no reason to differentiate between the two in terms of apportionment of responsibility.  In my view, the appropriate finding should have been, and is, that Mr Woodham was 50 per cent liable for what happened and Miss Turner was 50 per cent liable for what happened.  
37.	I would allow the appeal to that extent, accordingly.
Sir Stephen Sedley:
38.	With regret, because of the sympathy one has for a young man whose life has been ruined by momentary misjudgements,  I agree that there was no sufficient reason, on the judge’s own findings, to depart from the prima facie conclusion that both drivers were comparably at fault.  I respectfully adopt Lord Justice Davis’s explanation of why this is the case.  I too would allow the appeal to the extent he proposes.
Lord Justice Carnwath:
39.	I also agree, also conscious of the well-established approach of this court of not interfering with issues of apportionment except in a clear case.  The problem to my mind is in the judge’s own conclusions.  Having very clearly set out his views on the respective responsibilities of the two parties, it is at paragraph 31 to 33, which my Lord has quoted, that one finds what seems to me a logical gap.  In paragraph 31 he sets out why he finds Miss Turner responsible.  In paragraph 32 he says that Mr Woodham’s lack of duty made him “substantially responsible”. My Lord has referred to the earlier passage where he used the words “very substantially” in connection with Mr Woodham’s contribution. 
40.	He then asserts that Miss Turner bears the greater share of responsibility, which he puts at 70 per cent. However he does not, as it seems to me, provide any identifiable reason for putting her responsibility any higher than his. In the absence of any such reason it is not possible in my view to justify moving away from the natural conclusion of equal responsibility.  For this reason, I also would allow the appeal.

Order:	 Appeal allowed in part