Neutral Citation Number: [2014] EWCA Civ 1201

B3/2013/3563 
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NORWICH COUNTY COURT 
(HIS HONOUR JUDGE MOLONEY, QC)
Royal Courts of Justice 
Strand
London, WC2A 2LL 

Wednesday, 9 July 2014
 
B e f o r e: 

LORD JUSTICE JACKSON

LORD JUSTICE McCOMBE 

LADY JUSTICE MACUR 

------------------------------
Between: 
	EMIL GRAY	Appellant	
	v		
	MICHAEL BOTWRIGHT	Respondent	
------------------------------
DAR Transcript of the Stenograph Notes of  
WordWave International Limited
A Merrill Communications Company 
165 Fleet Street  London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
------------------------------

Mr Paul Oakley (instructed by Hatch Brenner LLP) appeared on behalf of the Appellant
Miss Nadia Whittaker (instructed by Clyde & Co LLP) appeared on behalf of the Respondent 
------------------------------
J U D G M E N T

LORD JUSTICE JACKSON:  

This judgment is in four parts, namely: 

Part one. Introduction;
Part two. The facts; 
Part three. The present proceedings; 
Part four. The appeal to the Court of Appeal.

Part one. Introduction
1.	This is an appeal on liability and quantum in a running down case.  The point of interest in this appeal is whether the "coincidence of location" fallacy is relevant to this case.  That is why Sir Stephen Sedley granted permission to appeal having considered the matter on the papers.  
2.	The coincidence of location fallacy may be illustrated by the following hypothetical facts, which are not this case. A defendant acts negligently and, as a result of that negligence, he is in a position where an accident of some sort occurs, but the occurrence of that accident was not within the scope of the duty of care which the defendant breached when acting negligently.  Suppose, for example, a motorist drives at excessive speed between point A and point B.  The motorist then slows down to a proper speed and is involved in a collision which is not his fault.  The motorist would not have been at the point of impact if he had not driven too fast on an earlier occasion, but that earlier negligence of driving too fast is not causative of the collision. This is because once the motorist had passed point B, he was at a location where the impact would not be within the scope of any duty of care which the defendant had breached.  That, as I say, is the point of interest in this case and is the reason why permission to appeal was granted.  
After these introductory remarks, I must now turn to the facts.

Part two. The facts
3.	On the afternoon of 5 July 2010, the claimant was driving northwards along the A143 road in Norfolk in a blue Ford Focus motor car.  The defendant was driving southwards along the same road in a white Hyundai motor car.  
4.	Where the A143 road passes through the village of Bradwell there is a somewhat complicated junction.  At this point, the A143 is called Beccles Road.  As one travels north up Beccles Road, there is a turning to the left into Church Lane, then a turning to the right into Long Lane, then another turning to the left into Mill Lane.  A set of 11 different traffic lights controls the flow of traffic between Church Lane, Long Lane, Mill Lane and Beccles Road.  
5.	Mr Tim Livermore of Norfolk County Council has produced a very helpful plan of this long staggered junction as he describes it, together with an explanation of the phasing of the traffic lights.  At one point in the phased operation of the traffic lights, a green light allows traffic to come out of Mill Lane and to turn either left or right into Beccles Road.  During this phase, traffic lights in Beccles Road immediately to the north and to the south of the Mill Lane turning shine red so as to stop traffic proceeding in either direction along Beccles Road.  
6.	When the claimant reached Bradwell, he intended to turn right into Long Lane.  A Land Rover in front of the claimant successfully completed this manoeuvre.  The claimant then followed.  He turned right and started to drive across the southbound carriageway of Beccles Road in order to enter Long Lane.  
7.	Before commencing that right hand turn, the claimant did not look northwards to see if there was any oncoming traffic in Beccles Road.  The reason why the claimant did not make this check was that he saw the traffic light ahead of him had just turned red.  From this he deduced, correctly, that the light controlling traffic heading south along Beccles Road would also be red.  The claimant assessed that any vehicles emerging from Mill Lane and turning right to head southwards would not have had time to reach Long Lane.  
8.	Unfortunately, the claimant was over-optimistic.  The defendant, who was heading southwards down Beccles Road, proceeded to drive through the red traffic light.  Thus, the defendant was heading southwards down Beccles Road when the claimant turned right across the southbound lane.  
9.	As a result, the inevitable happened.  There was a collision.  The claimant suffered injury to his back and damage to his car.  
10.	In order to recover compensation for his losses, the claimant commenced the present proceedings.  
Part three. The present proceedings 
11.	The claimant brought proceedings in the Norwich County Court alleging that the accident had been caused by the defendant's negligence.  The defendant defended the claim on the grounds that the accident was entirely the claimant's fault.  
12.	The action came on for trial before District Judge Pugh in the Norwich County Court in July 2013.  The claimant, the defendant and three independent witnesses to the accident all gave evidence.  So did Mr Tim Livermore, an employee of the Norfolk County Council, give evidence.  As previously mentioned, it was Mr Livermore who produced the very helpful plan and explanation of the phasing of the traffic lights.  The three independent witnesses were Mr James House, the claimant's front seat passenger; Mr Dean Emmerson, who was standing at a nearby bus stop when the accident occurred; and Mr Stephen Aldous, who was driving a car immediately behind the claimant's blue Ford Focus.  
13.	The district judge made the following findings of fact.  The defendant drove through a red traffic light when he entered the junction.  The defendant was travelling at a speed not significantly in excess of the limit, which was 30 miles per hour.  The claimant failed to look ahead to see if any vehicles were approaching before he started to turn right into Long Lane.  That failure on the part of the claimant amounted to negligence.  That negligence on the claimant's part was the sole cause of the accident.  
14.	The district judge declined to find that the defendant's negligence in crossing the red light was causative of the accident.  The district judge concluded that this was a case where the coincidence of location fallacy applied.  There had indeed been a prior breach of duty by the defendant in crossing the red traffic light, but that was not relevant to the accident.  The sole cause of the accident was the claimant proceeding to drive across the southbound lane at a point in time when it was not possible for the defendant to stop or otherwise avoid the accident. In arriving at this decision on the coincidence of location fallacy, the district judge relied upon the reasoning of the Court of Appeal in Whittle v Bennett [2006] EWCA Civ 1538.  Accordingly, the district judge dismissed the claimant's claim.  
15.	The district judge very helpfully went on to consider the matter of quantum in case a different view on liability was taken by a higher court.  The district judge assessed the special damages at £1,957.68 inclusive of interest up to 22 July 2013.  He assessed general damages, excluding interest, in the sum of £2,800.  
16.	The claimant was aggrieved by that decision.  Accordingly, he appealed on issues of liability and quantum to a circuit judge.  
17.	HHJ Moloney heard that appeal on 11 November 2013 sitting in the Norwich County Court.  The circuit judge dismissed the claimant's appeal.  He upheld the reasoning of the district judge and concluded that the claimant was the sole author of his misfortune.  The circuit judge, like the district judge, took the view that the reasoning in Whittle v Bennett, in particular paragraph 24, was applicable to the circumstances of this case.  
18.	The claimant is aggrieved by the circuit judge's decision.  Accordingly, he appeals to the Court of Appeal.  
Part four. The appeal to the Court of Appeal
19.	By an appellant's notice filed on 9 December 2013, the claimant appealed to the Court of Appeal both on liability and in relation to quantum of damages.  As to liability, in his notice of appeal the claimant maintained that on the district judge's findings of fact the defendant was negligent in driving through the red traffic light and failing to slow down before the accident occurred.  In relation to quantum, the claimant asserted that £2,800 was too low for an award of general damages.  Having regard to the severity of the claimant's injuries, a proper award would have been in the region of £4,300.  
20.	This appeal has been argued today most clearly and forcefully by Mr Paul Oakley on behalf of the claimant and Miss Nadia Whittaker on behalf of the defendant.  I am grateful to both counsel for their helpful submissions.  They stuck tenaciously to their arguments on those occasions when the court took the liberty of expressing contrary views and this discussion was most helpful.  
21.	In his oral argument, Mr Oakley relied upon the decision of the Court of Appeal in Radburn v Kemp [1971] 1 WLR 1502.  That was a case in which the defendant entered a road junction through a green light in his favour, but failed to keep a proper look out and as a result crashed with a cyclist.  Mr Oakley argued that when a driver enters a junction against a red light, there is an even higher duty to keep a careful look out for other road users in the driver's path.  
22.	Mr Oakley submitted that the judge erred in his reliance on Whittle v Bennett.  Unlike Whittle v Bennett, this case is not one which turns upon the coincidence of location fallacy.  Mr Gray, said Mr Oakley, was entitled to rely upon the red light ahead of him.  The claimant saw no need to check for oncoming traffic because the lights would be red against any oncoming traffic in Beccles Road.  
23.	Miss Whittaker on behalf of the defendant reminds this court that the district judge spent an entire day hearing the oral evidence of six witnesses: one highly knowledgable gentleman from the Norfolk Council, the two protagonists in the case and three independent witnesses to the accident.  The judge made findings of fact with which this court should not interfere.  The judge found against the claimant on causation in relation to the defendant having driven through the red traffic light.  Miss Whittaker points out that it is about a gap of 50 metres between the red traffic light which the defendant crossed and the point where the accident occurred.  At the time of the accident, Miss Whittaker submits, the causative potency of the defendant's failure to stop at the red light had been spent.  
24.	Miss Whittaker relies heavily upon the fact that the judge found the defendant to have been driving at a reasonable speed, which was only slightly above the limit of 30 miles per hour.  Miss Whittaker argued that there was no need for the defendant to slow down when the Land Rover crossed in front of him because that Land Rover was well away before the defendant reached the mouth of Long Lane.  In relation to that point, Miss Whittaker urged upon us that the pleadings do not encompass an allegation that the defendant should have slowed down when he saw the Land Rover vehicle.  I do not agree with that observation.  It seems to me that the pleadings clearly are wide enough to encompass that particular allegation.  
25.	Miss Whittaker urges upon the court that the cause of the accident was the claimant's foolishness and nothing else.  The defendant could not reasonably foresee that the dlaimant would be so foolish as to drive out in front of the defendant across his path.  
26.	Let me first consider the claimant's position.  The claimant, like the defendant, was well familiar with this road junction.  As he drove north up Beccles Road and prepared to turn right, on the claimant's evidence and on the facts as found by the district judge, the claimant took a positive decision not to bother to check whether there was oncoming traffic in the southbound lane.  He took that decision because he inferred that the traffic light to the north of him, number 8 on the plan, would be shining red.  He assessed that any traffic entering Beccles Road, as it was entitled to, from Mill Lane would not have had time to get as far as Long Lane.  
27.	I am bound to say that the decision to cross the southbound carriageway of Beccles Road was an act of sheer folly.  It is not sensible to assume, without bothering to check, that no cars will be coming before you cross a road.  That applies whether you are a pedestrian or a motorist.  The claimant was undoubtedly negligent in failing to check whether or not there was oncoming traffic.  If he had bothered to look, he would have seen a white car heading towards him at just over 30 miles an hour.  
28.	On the district judge's findings of fact, at the moment when the defendant started to cross the southbound carriageway of Beccles Road, the accident was inevitable.  At that point, the defendant was driving at such a speed and was so close to the mouth of Long Lane that it was impossible for the defendant to stop before the collision occurred.  So the claimant's negligence was clearly a substantial cause of the accident.  
29.	The next question is this.  Was the claimant’s negligence the only cause of the accident?  The district judge and the circuit judge both decided that it was.  In my view, it was not.  I do not agree with Miss Whittaker's analysis that this section of road should be treated as a series of separate junctions so that the defendant's negligence in crossing a red light at traffic light number 8 was spent by the time that the defendant reached the mouth of Long Lane.  There was, it is true, a gap of about 50 metres between traffic light number 8 and the mouth of Long Lane.  On the other hand, this is not a series of junctions.  It was a single long staggered junction as described by Mr Livermore.  The 11 traffic lights are there strategically placed at the point where these four different roads come together, in order to ensure that during each phase of the traffic lights there are not too many vehicles in the junction area.  
30.	The blunt fact is that the defendant should not have been where he was at the moment of impact.  Unlike the judge and the district judge, I do not think that the claimant's case rests on the "coincidence of location" argument.  This case is essentially different from Whittle v Bennett.  
31.	The whole purpose of the 11 traffic lights was to ensure a regular flow of an appropriate number of vehicles through this junction at each stage of the traffic lights’ operation.  By entering the junction when he did, the defendant created the very danger that the phased traffic lights were designed to avoid.  When the defendant crossed the red light, he increased the danger for all the vehicles and pedestrians who were entitled to be in the junction area during that phase of the traffic lights.  The accident which actually occurred was one of the very things which the red light on pole number 8 was intended to prevent.  In my view, the damage which the claimant sustained was within the scope of the duty which the defendant owed to other road users when he crossed the red light.  
32.	In addition to that crossing of the red traffic light, there is the complaint made by Mr Oakley that the defendant was driving too fast and the defendant failed to slow down when he saw the Land Rover crossing his path.  I do not accept the general allegation that the defendant was driving too fast.  The district judge, having heard the evidence, rejected the assertion by some witnesses that the defendant was driving at about 50 miles per hour.  The district judge found that the defendant was driving at only just over 30 miles per hour, which, in normal circumstances, would be a safe speed.  
33.	The second aspect of this point raised by Mr Oakley is a contention that even if the defendant were otherwise driving at a safe speed, he should have slowed down when the Land Rover crossed his path.  I have come to the conclusion that this is a good point.  I have reached this conclusion for two reasons.  
34.	First, the onus was on the defendant to be particularly careful when driving through this junction as he should not have been there at all at that time.  This is not a case like Radburn v Kemp where the defendant entered the road junction through a green light.  This was a case where there was a particular duty on the defendant because he had gone into that junction at the wrong time.  
35.	Secondly, the defendant saw the Land Rover crossing his path in front of him.  There was a risk, albeit a small risk, that the next vehicle in the filter lane in Beccles Road would follow suit.  This was, after all, a time at which the traffic lights were adverse to the vehicles entering the junction area from Beccles Road and favourable to vehicles which were already within the junction area.  
36.	I come to the conclusion that the defendant was at fault in failing to slow down as he approached the mouth of Long Lane, a road into which a group of cars, one by one, was entering or about to enter.  
37.	I come next to the question of apportionment.  Frankly, I consider that both parties to this litigation were driving extremely badly.  The claimant had no business whatsoever to cross the southbound carriageway of Beccles Road without looking ahead.  The defendant had no business whatsoever to drive through the red light and then to proceed at just over 30 miles per hour despite the fact that cars were crossing or about to cross in front of him in order to enter Long Lane. This was a manoeuvre which they would have been able to do quite easily if the defendant had stayed in his proper place behind the red light.  
38.	In the result, in my view I see this was a case of six of one and half a dozen of the other.  I would apportion liability 50/50.  Thus, the claimant succeeds on liability and I assess contributory negligence at 50 per cent.  
39.	I turn now to quantum.  The claimant sustained a neck injury and a back injury in the course of the accident.  The complication in this case is that the claimant had suffered two previous accidents affecting his back.  The first accident was on 16 December 2008 when the claimant jumped out of a window approximately 15 feet above the ground.  This caused injuries to and pain in the claimant's back as well as injury to his ankles.  The second accident occurred on 13 February 2010, just 5 months before the road traffic accident with which this court is concerned.  The circumstances of the second accident were these.  The claimant jumped over a low wall and he fell down some steps.  He suffered a fracture of T6 in his thoracic spine and fractures of some ribs.  He was required to wear a brace for some time after that accident and he suffered ongoing symptoms and pain as a result of the accident.  
40.	The claimant's medical expert, Professor Michael Saleh, has provided a very full report and has attempted to separate out the effects of the road traffic accident from the effects of the pre‑existing injuries.  Professor Saleh concludes that the road traffic accident exacerbated the symptoms which the claimant was suffering anyway and that this exacerbation continued for an 18 month period.  
41.	In the present case, the symptoms which the claimant suffered were both to his neck and to his back.  So far as the neck was concerned, stiffness settled within 2 to 3 weeks, but pain continued for some time thereafter.  The principal problem seems to have been the continuing pain in the claimant's back, but that was only in part due to the road traffic accident.  The other cause operating was the claimant's previous injuries.  
42.	The district judge assessed the claimant's injuries by reference to the Judicial College Guidelines.  This is not a case to which the 10 per cent uplift introduced in April 2013 applies.  That is because the claimant's conditional fee agreement was taken out before the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into force.  
43.	The district judge assessed general damages for pain suffering and loss of amenity in the sum of £2,800.  Mr Oakley urges upon the court that that figure is too low and that the appropriate award would be in the region of £4,300.  I have carefully considered the relevant section of the Judicial College Guidelines.  I have also read the brief reports of a number of quantum cases which Mr Oakley has provided to the court.  
44.	In my view, the award of general damages made by the district judge was low.  It was very much towards the bottom of the bracket, but it was not so low that this court should intervene.  It is not the function of the Court of Appeal to carry out a fresh assessment of quantum of damages unless the judge has gone into the wrong bracket.  The district judge at trial saw the claimant giving evidence, heard his evidence and made his own appraisal of the severity of the injuries referable to the road traffic accident in the somewhat complicated context which I have previously mentioned.  In the result, therefore, I would dismiss the appeal on quantum.  
45.	The result of this appeal, therefore, will be, if my Lord and my Lady agree, that the appeal on liability will be allowed.  The appeal on quantum will be dismissed.  There will be substituted an award of damages in the sum of £2,378.84, together with such further appropriate interest as no doubt counsel will agree.
46.	LORD JUSTICE MCCOMBE:  I agree. 
47.	LADY JUSTICE MACUR:  I agree.