Neutral Citation Number: [2012] EWCA Civ 424
Case No: B3/2011/2416
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NORWICH COUNTY COURT 
(sitting in Cambridge)
HIS HONOUR JUDGE YELTON
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 04/04/2012
Before :

THE MASTER OF THE ROLLS
LORD JUSTICE LONGMORE
and
LORD JUSTICE STANLEY BURNTON
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Between :

	(1) NIGEL DAVID STANGROOM
(2) EQUITY RED STAR LTD 
	
Appellants	
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	VALERIE ANN BROWN 
(one of the administrators of the Estate of Christopher Noel Brown deceased)	Respondent	
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 (Transcript of the Handed Down Judgment of
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Marcus Dignum (instructed by Morris Orman Hearle) for the Appellant
Paul Hollow (instructed by Ward Gethin) for the Respondent

Hearing date : 29 March 2012
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Judgment

Lord Justice Stanley Burnton : 
Introduction
1.	This tragic case resulted from a fatal accident on 20 June 2007 in which Christopher Brown, a young man riding a powerful motorbike, collided with a tractor and trailer driven by the First Appellant, Mr Stangroom and insured by the Second Appellant.  It is an appeal by the Appellant Defendants against the order of His Honour Judge Yelton, sitting in the Norwich County Court in Cambridge, holding them 25 per cent liable for the fatality, loss and damage resulting from the accident. The Appellants contend that the judge should have found that the negligence of the deceased Mr Brown was the sole cause of the accident.
The facts
2.	Mr Brown was an experienced motor cycle rider. He had a powerful 1000 cc motorcycle, and he liked to ride fast. On the evening of the accident, he was riding with a Mr Hull, who too was an experienced rider. They were returning from Wells-next-the-Sea at about 10 pm, but it was still light. They were travelling on a B road, with a speed limit of 60 mph. They overtook a BMW motor car. They turned right at the junction at Beetley, going towards East Dereham. At the scene of the accident there is a lay-by on the near side, on the inside of a sweeping bend. As they left the cross roads, Mr Brown accelerated away from Mr Hull. They overtook a car driven by a Mr Rose, who said that he was going at about 60 mph, and thought that the motorcycles were going at about 100 mph. The judge found that he was wrong about this, and that in fact Mr Hull was travelling at about 65 to 70 mph and Mr Brown might have been travelling at about 85 or 90 mph. The judge found that Mr Brown was travelling too fast for the road and “very well above the speed limit”. As he came around the bend, Mr Brown collided at speed with the tractor and trailer, and was killed.
3.	For reasons that are not relevant, Mr Stangroom had arranged to meet his employee at the lay-by, Mr Elliott, who was driving another tractor and trailer. They exchanged vehicles. Mr Elliott drove his tractor, with its laden trailer, out of the lay-by towards Dereham, and Mr Stangroom waved him out, to make sure all was well. Mr Stangroom then had to take his tractor and empty trailer out of the lay-by, and had to cross the roadway in order to proceed in the direction of Elmham to the north. In order to give himself more visibility, instead of exiting from the lay-by at the north end, he went over the grass verge between the lay-by and the road, since he perceived the danger of someone coming round the bend and finding his tractor and trailer blocking the road. As the tractor and trailer were diagonally across the road, Mr Brown came round the bend and collided with the tractor.
4.	According to the police accident report, anyone travelling at 71 mph (i.e., some 10 mph over the speed limit) would have been able to stop, even assuming that the tractor and trailer were blocking the road. This evidence was not disputed. Mr Rose was able to stop his car some 4 car lengths before the trailer, and Mr Hull similarly was able to stop, albeit he bumped slightly into it.
The findings of the judge
5.	The judge held that the major factor in causing the accident was Mr Brown’s excessive speed. He continued:
“The issue that has exercised me is whether or not the defendant was in any way to blame for what occurred. When one looks at the situation what the defendant did was actually to produce a situation of great danger because by pulling out in the way that he did across the road he was bound to, for a period of time, block the road and although anybody driving within the speed limit should have been able to stop, on the other hand, one had to assume that people will be driving at beyond the speed limit. Had Mr Brown been riding at more than 100 miles per hour which on my findings he was not, then it may be that that is something that could not have been foreseen. Mr Hollow says that what the defendant should have done was either get Mr Elliot to flag him out rather than the other way round, as it were, because he was in the position of greatest danger, or put on his hazard warning light, and I am satisfied on the balance of probabilities that this tractor had such a light, as did the one in the photograph, and either of those, or I suppose sound his horn or something of that sort, and either of those would have been the only way in which traffic coming along the road in the opposite direction could be alerted. The position in which the defendant found himself was so potentially hazardous that he had to take any measures that were feasible to allow him to do that and he appreciated that and that is why he came across the middle of the verge rather than the end of the verge in the ordinary lay-by way, but it seems to me that that must have slowed his progress down as he pulled out and meant in effect that he may have blocked the road for longer than would otherwise have been the case. 
I am wholly satisfied that the primary liability, when I come to apportion liability in this case, falls on the deceased, but I am satisfied that some liability falls on Mr Stangroom even though he was doing the best he could and he certainly was not acting in any way recklessly and having given the matter careful consideration, which I have been throughout the case, I have some to the conclusion that liability should be apportioned 75 as against the claimants, that is right, as against the claimant, 75 percent. As against the defendant 25 per cent. So that is the conclusion to which I have come.”
The contentions of the parties on appeal
6.	It can be seen that the judge referred to four allegations of negligence:
(1)	Mr Stangroom should have got Mr Elliott to wave him out, rather than vice versa.
(2)	Mr Stangroom should have turned on his hazard warning light.
(3)	He should have sounded his horn “or something of that sort”.
(4)	He should not have crossed the grass verge, since by doing so he slowed his progress and blocked the road for a longer time than would otherwise have been the case.
7.	For the Appellants, Mr Dignum submitted that, assuming that the judge found all of these allegations to have been proved and causative, he was wrong to have done so. Mr Stangroom had a good reason to allow Mr Elliott to go first: Mr Elliott had a fully laden trailer, which would have been slower than Mr Stangroom’s, and he had to travel up hill. Moreover, there was no evidence that a pedestrian waving at the oncoming motor cycle would have been seen in time for him to halt, given his speed; and to be effective Mr Elliott would have had to go in one direction or another, and in fact the more sensible direction for him was the opposite direction from that from which Mr Brown came, because it was in the other direction that visibility was more curtailed. There was nothing to suggest that switching on the light above the tractor would have been seen any earlier than the tractor and trailer themselves. A horn would not have been heard by a rider on a powerful motorbike, and there was no evidence it would have been. Mr Stangroom’s crossing of the verge was evidence of his care, not of negligence, and it was obvious that any reduction in the speed of the tractor and trailer would have been minimal, and could not have contributed to the accident. 
8.	For the Respondent, Mr Hollow’s principal submission was that Mr Stangroom should have switched on the warning light on top of his cab. The “other real option” was to have Mr Elliott guide him out. The judge was entitled to make the findings he did and the appeal should be dismissed.
Discussion
9.	It is not clear that the judge found that allegations (1), (2) and (3) were proved. His judgment does not expressly so state: it reads as a recitation of allegations. The reference to sounding the horn “or something of that sort” reinforces this impression. Be that as it may, there was no evidential basis for a finding that the hazard light, intended to be used when a tractor is proceeding along a road to warn other road users of a slow-moving vehicle, could have been seen by Mr Brown any earlier than the tractor and trailer themselves. In my judgment, if the judge made this finding of negligence, he erred in doing so. I would therefore reject Mr Hollow’s principal submission.
10.	Mr Hollow concedes that sounding a horn would have made no difference: it is unlikely to have been heard.
11.	So far as using Mr Elliott to wave Mr Stangroom out is concerned, it seems to me that Mr Dignum’s contentions are well-founded. It is unrealistic to think that a motorcyclist, travelling at the kind of speed that Mr Brown was, would have been alerted any more effectively by a pedestrian than by the presence of a substantial tractor and trailer. Moreover, the scene of the accident was not an intrinsically dangerous location, in that there was sufficient visibility for a motorist exceeding the speed limit by 10 mph to stop at the site of the accident. In so far as it is suggested that Mr Elliott should have stood nearer the bend in the road, there was, quite apart from that point, no evidence that it would have improved the sightline available to Mr Brown, and, in any event, Mr Elliott would have stood further from, rather than nearer to, the bend, as the evidence showed that there was a somewhat shorter sightline the other way – viz. coming from East Dereham. In all these circumstances, I do not think that it could be said that Mr Stangroom was negligent to emerge from the lay-by and to cross the roadway as he did without assistance. 
12.	Allegation (4) is the only allegation that the judge clearly found proved. It formed no part of the Respondent’s case at trial, and was not put to Mr Stangroom. For that reason alone, it cannot be upheld. In any event, however, Mr Stangroom’s decision to cross the grass verge was evidence of care, not of carelessness, and the judge had no evidence to suggest that a speedier emergence into the roadway, which could only have been marginally quicker for the large tractor, would have been any safer or would have avoided the accident.
Conclusion
13.	One can only have sympathy with Mr Brown’s family, and with the judge’s motivation in finding Mr Stangroom partly to blame for the accident. However, I am compelled to conclude that his finding cannot be upheld. I would allow the appeal and dismiss the claim.
Lord Justice Longmore:
14.	I agree.
The Master of the Rolls
15.	I also agree.