Case No: B3/2008/0178
Neutral Citation Number: [2008] EWCA Civ 616
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN’S BENCH DIVISION
(MR JUSTICE WILKIE)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 15th May 2008

Before:

THE CHANCELLOR OF THE HIGH COURT
and
LORD JUSTICE RIX
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Between:

	LINDESAY
	Respondent/
Claimant 	
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LAMB AND ANOTHER	Appellant/
Defendant	

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Mr C Purchas QC (instructed by Messrs Edwards Duthie) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED

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Judgment
Lord Justice Rix:

1.	This is a renewed application for permission to appeal from the judgment of Wilkie J delivered on 14 December 2007, brought by Mr Lamb in respect of his Part 20 claim against Mr Tatner.  
2.	These proceedings arise out of a very unfortunate accident which occurred about 7.15am on the morning of 19 April 2004 on the A30, close to the turn-off to terminal 4.  The traffic proceeding in a westerly direction down the A30 was put into difficulties by a vehicle which had suffered a puncture and was stopped on the inside of the double-laned carriageway.  This caused one vehicle to swerve late to avoid the parked vehicle.  It caused two vehicles behind that swerving vehicle to brake sharply to a halt, which they succeeded in doing, but unfortunately the vehicle behind those two vehicles -- a taxi driven by Mr Tatner (and I will call Mr Tatner “the taxi”) -- could not halt in time and collided at low speed with the back of the Toyota in front of him.  Behind the taxi, some eighteen metres away, was a lorry driven by Mr Lamb, who brings this application.  In between the lorry and the taxi was the scooter driven by the claimant, Mr Lindesay.   
3.	What happened, as the judge found, was that the scooter, although travelling just to the outside of the lorry, was hit by the lorry when it applied its emergency brakes, even though the lorry sought to steer to the inside, and that ruptured the petrol tank of the scooter which engulfed Mr Lindesay in flames.  His injuries were essentially burn injuries and very serious indeed.  
4.	Very shortly after the lorry hit the scooter, the scooter, still upright, hit the taxi in front of it and, almost at the same time, the lorry collided itself into the taxi.  Those are the essential facts as found by the judge of the accident.  The judge found that the lorry was liable in negligence to Mr Lindesay and that Mr Lindesay was 20% contributorily negligent in respect of that liability.  We are not, on this application, concerned with the position between the lorry and the scooter.  We are concerned with the position under the Part 20 proceedings between the lorry and the taxi.
5.	The taxi admitted negligence in that it failed to avoid hitting the Toyota in front of it.  The facts were that the taxi had failed to apply its own brakes until it had observed the Toyota in front of it had stopped.  Although all this happened at relatively low speeds, starting from about 30mph, that put the taxi into the position where, even applying an emergency stop on admittedly wet and slippery roads, it could not quite bring itself to a halt in time.  The judge found that, without hitting the Toyota, the taxi would have travelled another metre-and-a-half down the road in its emergency stop under entirely its own steam.
6.	Because the taxi’s negligence was admitted, it is possible that the judge did not address precisely (for the purposes of the separate position between the taxi and lorry) the nature of that negligence, beyond the fact that the taxi had hit the Toyota in front.  The closest that the judge comes to defining the negligence is at paragraph 68 where he says this:
“Mr Tatner does not dispute that he drove negligently, in that he failed to brake in time to avoid colliding with the vehicle in front of him.”
7.	However, for the reasons that I have stated, the facts which the judge records in setting out the taxi’s witness statements (see paragraph 16 of the judgment) were that, although the consequence was that the taxi hit the Toyota in front, the negligent cause of that consequence was his late application of his brakes.  The judge devoted by far the greater part of his judgment to the more difficult and disputed facts relating to the collision between lorry and scooter; and lorry, scooter and taxi.  When he came to deal with the Part 24 case he dealt with it relatively briefly towards the end of his judgment, beginning at paragraph 67.  
8.	For the purposes of this application, the following matters are arguably problematical.  The first point to observe is that in paragraph 68, immediately after stating the nature of the taxi’s negligence in the passage that I have just recited, the judge said this:
“That had the consequence that he came to a halt nearer to the traffic behind than he would have done had he managed to brake and not collide with the vehicle in front.”
9.	That is -- Mr Christopher Purchas, QC, submits on this application -- wrong in that, if the taxi had braked in time, he would have stopped behind the taxi, rather than driven around it and continued further down the road, and he would therefore, without his negligence, have stopped sooner and nearer to the traffic behind.  The essential dispute between the parties on the Part 24 case was that, on behalf of the taxi, his counsel had submitted that without the negligence the taxi would have driven further down the road, but that would not have mattered in any event, and that it followed -- for reasons which are not entirely clear in the submission recorded in paragraph 70 of the judgment -- that the accident between lorry and scooter would have happened in any event.  The counter-submission made by Mr Purchas to the judge was that, if the taxi had braked in time, the whole dynamics of the position behind the taxi would have changed and that it was quite probable that the taxi’s negligence had contributed in some way to the difficulties of lorry and scooter behind.  In a single paragraph -- the last paragraph of his judgment, paragraph 72 -- the judge simply stated that he preferred the argument of the taxi’s counsel.  The judge said:
“Mr Tatner would not have been regarded as driving negligently had he come to an emergency stop in sufficient time to have avoided colliding with the vehicle in front.”
10.	Mr Purchas submits that that is in error: even though the taxi might have been able, with good fortune, to have avoided hitting the Toyota in front, he would still have been negligent in that he had failed to observe the braking Toyota in front and had started braking himself too late.  It was that that put the vehicles behind him in difficulty.  The judge went on to say, in effect, that he concluded that the taxi’s negligence was irrelevant to the causation of the accident between lorry and scooter, but he does not give any reasons for that conclusion.  
11.	It may well be the case, if one examines in greater care than we have had to do for the purposes of this application, that, properly understood, the accident between lorry and scooter was, for reasons of its own, entirely independent of the taxi’s negligence.  On the other hand, it does seem to me to be arguable, with a real prospect of success on appeal, that the taxi’s negligence, if properly and correctly understood as being negligence in failing to observe the slowing Toyota in front and failing therefore to start its own braking manoeuvre in time, did put the vehicles behind it in such difficulties as to be causatively relevant to, and in some way contributory to, the accident between lorry and scooter.  
12.	After all, although, if the taxi had braked in time and managed to come to a halt behind the Toyota and without hitting it, the total absolute road space behind the back of the taxi available to lorry and scooter would have been somewhat reduced: nevertheless, on the assumption that the taxi had begun to slow sooner because it braked sooner than it did, the effect of lower speeds would, arguably, as I see it, have meant that there was, at those lower speeds, more time-space for lorry and scooter to brake and negotiate their halt in greater safety than they were able in the circumstances to do.  
13.	Therefore, in conclusion, I accept that there is a real prospect of success on appeal for this application and I would grant permission to appeal accordingly.
The Rt Hon Sir Robert Andrew Morritt, CVO: 
14.	I agree.
Order:  Application granted