Rouse v Squires and Others [1973]
- Reported: [1973] QB 889; [1973] 2 ALL ER 903
- Year: 1973
- Court: Court of Appeal
<h2>FACTS:-</h2>
An incident occurred at about 10.30 pm on a frosty night, when Mr Allen, driving his employer’s articulated lorry up the north- bound carriageway of the M1, for reasons admittedly involved negligence on Mr Allen’s part, lost control of the vehicle; it skidded and got into what is called a jack-knife position obstructing the slow and centre lanes of the carriageway. An “1100” motor car travelling on the centre lane of the same carriageway collided with the part of Mr Allen’s lorry which was in that lane. The rear lights stayed on. After that two lorries arrived on the scene. Both avoided the lorry. One lorry, driven by Mr Rouse (the Claimant), was parked in the hard shoulder. Mr Rouse got out to offer assistance. The other lorry, driven by Mr Franklin, pulled up in the nearside lane of the carriageway 15 feet short of the jack-knifed lorry, and he stayed there, leaving his headlights on purposely in order to illuminate the broken down lorry; his rear lights also remained on. Finally, some five to ten minutes after the original accident Mr Squires (the Defendant) arrived on the scene driving his employer’s lorry at a fast speed. He did not realise, when he first saw the vehicles some 400 yards away, that they were stationary and that two lanes of the carriageway were obstructed. Eventually at a distance of some 150 yards he applied the brakes but because of frosty surface, he skidded. His lorry collided with the rear of Mr Franklin’s lorry and pushed it forward with the result that it knocked the Claimant down and caused him fatal injuries.
The Claimant’s widow obtained damages against the Defendant in respect of his negligent driving and, in third party proceedings, the Defendant claimed contribution from Mr Allen and his employer’s in respect of Mr Allen’s negligence. The trial judge dismissed the claim holding that the Defendant was wholly to blame for the accident since the broken down lorry was adequately lighted, and if the Defendant has kept a proper look out he would have seen it some 400 yards away thereby giving himself sufficient time to take avoiding action.
The Defendant appealed the decision in the Court of Appeal Civil Division before Buckley, Cairns LJJ and Mackenna J.
<h2>HELD:-</h2>
In coming to a conclusion <strong>Cairns LJ, </strong>was drawn to a number of authorities.
After considering the various authorities, Cairns LJ reached the conclusion that <strong>Harvey</strong><strong> v Road Haulage Executive </strong>and <strong>Barber v British Road Services</strong> were the most binding. He concluded that if a driver so negligently manages his vehicle to cause it to obstruct the highway and constitute a danger to other road users, including those who are driving too fast or not keeping a proper look- out, but not those who deliberately or recklessly drive into the obstruction, then the first driver’s negligence may be held to have contributed to the causation of an accident of which the immediate cause was the negligent driving of the vehicle which because of the presence of the obstruction collides with it or with some other vehicle or some other person. Accordingly, Cairns LJ held that Mr Allen’s negligence did contribute to the death of Mr Rouse and allowed the appeal.
He went on to state that in his view the right proportion of blame to be set on the Defendant’s shoulders is 75 per cent as against 25 per cent on Mr Allen.
<strong>Justice Mackenna </strong>based his judgement on 5 findings of fact, all amply supported by evidence.
1. Mr Allen was negligent in that he drove his lorry in such a way that it ended up across the slow and centre lanes of his half of the road.
2. Mr Scattergood, whose car collided with Mr Allen’s lorry and ended up behind it in the centre lane, was not negligent
3. Mr Franklin was not negligent in pulling up behind Mr Allen’s lorry; he did so in order to keep the lorry illuminated
4. Mr Squires, who collided with Mr Franklin’s lorry was negligent. If he had been keeping an intelligent look out he would have seen the vehicles ahead. Additionally he was driving at excessive speeds.
5. If Mr Allen’s lorry had not been athwart the centre lane, Mr Squires would not have collided with Mr Franklin’s lorry
On the facts he held that Mr Allen’s negligence contributed to the fatal collision between Mr Squires and Mr Franklin. His driving in such a way that his lorry ended up across two lanes of the roadway was negligent because of the risk it created for other vehicles travelling in the same direction. Though the risk was diminished when the headlights of Mr Franklin’s lorry were focused on the trailer, it still existed to a substantial degree, and because of it Mr Squires collided with Mr Franklin’s lorry.
Justice Mckenna addressed a number of authorities and deduced the following rule. Where the party guilty of the prior negligence has created a dangerous situation, and the danger is still continuing to a substantial degree at the time of the accident, and the accident would not have happened but for this continuing danger, he is responsible for the accident as well as the party who was subsequently negligent.
He referred to Parcq J judgement in <strong>Walker v Bletchley Flettons Ltd </strong>[1937] 1 All ER 170 at 175 an obstacle may still be dangerous even though the danger has been reduced by lighting so that it no longer imperils those who use reasonable care for their own safety. He also referred to the case of <strong>The Eurymedon</strong>. In that case the Claimant’s ship lay at anchor in a dangerous position athwart the fairway of the Thames. Her position was indicated by lights which those in charge of the Defendant’s ship should have identified as anchor lights in time to avoid a collision. They did not do so because they were not expecting to find a ship in this unusual position. Both ships were held responsible for the collision.
Justice Mckenna concluded by holding Mr Allen as well as Mr Squires responsible for the collision which cause the Claimant’s death and fixed his share at 25 per cent and Mr Squires at 75 per cent. He therefore allowed the appeal.
<strong>Buckley LJ </strong>agreed with Justice Mckenna that anyone who by a negligent act creates a danger on a highway to others users of the highway can be liable to another user if damage results from the danger so caused. He determined the correct test is the ordinary test of foreseeability. But for the purpose, when considering how other road users can reasonably be expected to use the road, you are not entitled to assume that they will all exercise the proper degree of care.
In addressing whether there was a reasonable likelihood that a driver using the north-bound carriageway at the time of this accident with which we are concerned would fail to appreciate the dangerous situation which resulted from Mr Allen’s negligence, he decided it must be approached, as Lord Birkenhead LC said in <strong>The Volute </strong>([1922] 1 AC at 144, [1921] All ER Rep at 201,
<blockquote><em>“Somewhat broadly and upon common- sense principles as a jury would probably deal with it”</em></blockquote>
Justice Buckley held that the correct inference from the facts is that the circumstances were not such as to be reasonably likely to bring to the notice of other users of the highway the existence and the extent of the hazard which was presented by Mr Allen’s lorry being across two lanes of the highway in sufficient time to avoid an accident. There was no break in the chain of causation between Mr Allen’s negligence and the accident; there is “no clear line”. He came to conclusion that Mr Allen’s negligence did contribute to the accident which resulted in the death of the Claimant and therefore allowed the appeal.
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