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Bland & Another v Morris and MOD and Penarrubia-Serrano (Part 20 Defendant), High Court, 4 February 2005

21 February 2005
The issues

Road Traffic – Contribution – Apportionment Of Blame – Coach Driver Negligently Obstructing A Dual Carriageway When Lorry Driver Collided With The Coach Causing Injury To Passengers – Creating A Dangerous Situation – Causation

The facts

On 21st August 2000 an articulated lorry struck the rear of a stationary coach. The coach was carrying 40 RAF Cadets and 6 adults. Three cadets were killed and a number injured, one very seriously. Agreement had been reached in respect of compensation with all of whom had been injured or with the estates of those who had died. Proceedings were brought by the lorry driver, Mr Bland and his employers, Rathbones against the MOD and Mrs Morris the coach driver. Mrs Morris in turn claimed a contribution from the Part 20 Defendant. The Part 20 Defendant was the driver of a second lorry.

The Part 20 Defendant who came from Spain and was driving a left hand drive articulated Volvo lorry had pulled out from a service station back on to the main road using the slipway. As he came on to the slip way part of his vehicle was protruding into the carriageway. At the same time Mrs Morris was being overtaken by an articulated vehicle in her right hand lane. As she passed the curtain of the offside of the Part 20 Defendant’s trailer struck her nearside mirror. She drove on about 100 metres and stopped on the edge of the road possibly with her nearside wheels off the road. The driver of the Spanish lorry stopped as well. They engaged in a conversation. Neither spoke each other’s language and so they both went back to their respective vehicles.

Mrs Morris went back to the coach to advise everyone to get off saying something to the effect that they were sitting ducks on the coach. Mr Bland came on the scene in his lorry. He saw an articulated vehicle in the exit from the service station protruding in the carriageway and the Part 20’s vehicle parked at the end of the exit slip road. After he had gone by he looked back at them in his mirror and saw a car coming outside him in his offside lane. He failed to see the coach until he was very close. He swerved and his cab shaved the off side corner. The trailer following his lorry caught it more fully and did terrible damage. An eye witness gave evidence that he had seen hazard lights on the Part 20 vehicle stationary at a junction. Mrs Morris was an experienced HGV licensed driver but had received no training as to what to do in the event of an accident. She was familiar with the road. She was travelling at about 40 mph at the time of the first accident. When she stopped there was a lay by further ahead. She did not see the sign indicating that it was ahead and if she had done she would have gone on to it. She gave evidence that although she had not realised it at the time, she realised afterwards that it had been a thoroughly dangerous place to stop. She had put her hazard lights on. Mr Bland according to his tachograph had been driving at 53 mph dropping very gradually to 49 mph at the time of the collision with the coach. The speed limit on the road was 70 mph for cars, 60 mph for coaches and 50 mph for heavy goods vehicles. The accident had happened a little before 9.30 pm when it was not quite fully dark. The road did not have lights. Mrs Morris was convicted for dangerous driving. Mr Bland was acquitted of dangerous driving and convicted of driving without due care.

The decision

The First Accident

The slip road was short. There was a kerb at the start of the slip road on the left side. This caused difficulties for an articulated vehicle trying to get back on to the A1. A policeman had given evidence that there had been 4 injury collisions at this spot involving large goods vehicles since January 1996 which was about 1 per year. The Spanish driver had done what was obviously dangerous. He was blind as to the traffic behind him and had been for a substantial number of seconds and he drove so that his trailer protruded slightly into the carriageway. A slight protrusion was more dangerous because it was difficult for other drivers to recognise in the clear obstruction of a carriageway particularly when it was nearly dark. He should have stopped before he allowed the corner of his trailer to protrude onto the carriageway and either reverse or get help as to when it was safe to proceed or he could have driven over the kerb and avoided protruding.

Mrs Morris was also negligent. She had had plenty of time to see Mr Penarrubia and did see him. She saw that the vehicle was protruding. She said that she could not do anything because she only saw the protrusion at the last moment and was being overtaken herself. She misjudged the situation and took no avoiding action because she thought she would not hit the lorry on the blind she was driving. She should have seen that there was a real risk and have slowed substantially. Although two experts, Dr Searle and Mr Sorton called on behalf of the Defendant and the Claimant respectively had stated that Mrs Morris was not at fault in a joint statement the Judge did not agree. Blame would be apportioned in respect of the first accident, 60% the fault of Mr Penarrubia and 40% the fault of Mrs Morris.

The Responsibility For The Second Accident As Between Mr Bland And Mrs Morris

The facts of Mrs Morris’ conviction formed part of the evidence against her, see Stupple v Royal Insurance Company where Lord Denning held that it did not shift the burden of proof but was a “weighty piece of evidence in itself”.

She should not have stopped a drivable vehicle where she did but should have gone on to a place where it was safe to stop, namely the lay-by. If she had stopped where she did she should have either driven on to the verge and evacuated the passengers or at least have evacuated the passengers. She did none of these things. When she returned from the conversation with Mr Penarrubia she should at least then have driven on to the lay-by. Her failure in these respects was negligent. The time lapse between the two accidents was at least 3 or 4 minutes which was sufficient time for an organised evacuation of the passengers from the vehicle. It was relevant that the passengers were cadets under a measure of discipline and not for example school children on a trip.

Mr Bland accepted that he was negligent. He spent too much time looking at the lorry in the slip road and then in looking in his mirrors. If he had looked ahead at any time after the passing the point 130 metres from the coach he would have seen it and had time to slow and stop or slow and move into the fast lane. Rouse v Squires was authority for the proposition that if a driver negligently managed his vehicle so as to cause it to obstruct the highway and constitute a danger to other road users including those who were driving too fast and not keeping a proper lookout but not those who were deliberately or recklessly drove into the obstruction then his negligence may be held to have contributed to the causation of the accident of which the immediate cause was the negligent driving of the vehicle which collided with it or some other vehicle or person. In that case the driver of the lorry which had caused the initial obstruction was liable for ∫ of the subsequent damages that flowed. Here apportionment in respect of the claims arising from the injuries or deaths to the cadets would be apportioned one third to Mr Bland and two thirds to Mrs Morris. Mrs Morris had failed to evacuate the cadets from the coach which was a factor that was missing in the usual cases where the competing parties were a driver who had stopped on the highway and a driver who ran into him.

The responsibility for the second accident as between Mrs Morris and Mr Penarrubia. Mrs Morris had a substantial opportunity of avoiding the situation in which cadets were injured and died. It had been suggested that Mrs Morris’ actions amounted to a novas actus interveniens breaking the chain of causation. Such an act had to be “an event of such impact that it÷.. obliterates the wrongdoing of the Defendant”. (Clerk v Lindsell approved in Roberts v Bettany).

Mrs Morris’s negligence was not such. The first collision had put her in a situation where she had made a number of wrong decisions but they were not the equivalent of the deliberate or reckless driving which had been referred to by the Court of Appeal in Rouse. There was therefore a sufficient causative link between the first accident and the second. Mr Penarrubia’s liability for the second accident would be put at 20%. Mr Bland and Mrs Morris would apportion liability between them at one third to Mr Bland and two thirds to Mrs Morris. Mr Penarrubia should idemnify Mrs Morris as to 20% of her liability.

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