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Hames v Ferguson & Anor, Court of Appeal, 16 October 2008

2 February 2009
The issues

Road Traffic Accident – cars racing – apportionment of responsibility – whether Judge entitled to make finding on the basis of the pleaded case; driver distracted by behaviour of car behind him.

The facts

On 20 July 2003, a Sunday, the Claimant was a back seat passenger in a Vauxhall Corsa being driven by a Mr Wootten. In front of Mr Wootten was a Rover saloon driven by Mr Ferguson. The occupants of both cars were young people who were friends. The cars were in convoy and driving too fast on the B3348 road in Hampshire near Basingstoke which was a winding and twisting country road. At a point where the road approached Spencer’s Wood there was a bend to the left. As Mr Ferguson, the first Defendant, drove around that bend, there appeared in front of him a tractor and hay baler, entering a field. The tractor had entered into the field already but a large part of the baler remained in the road. Mr Ferguson drove straight into the baler. Mr Wootten drove straight into Mr Ferguson, the First Defendant. The Claimant suffered serious head injuries. The Judge found both Defendants liable, 60% being apportioned to the First Defendant and 40% to the Second Defendant, Mr Wootten. At the speed that Mr Ferguson was driving, at the point of which the baler came into view, he should have been able to stop. The reason as to why he did not see the baler and stop in time, the Judge found, to be because he was driving too fast and paying too much attention to what was going on behind him and not enough to what was ahead of him. The Judge was of the view that if Mr Wootten’s car had not been behaving as it was behind Mr Ferguson’s car on the balance of probabilities, Mr Ferguson would have had his mind on the road in front and seen the baler in time to stop. The Second Defendant appealed to the Court of Appeal. The Second Defendant appealed on the basis that the case the Judge had adopted was not set out in the proceedings nor explored in evidence and that he had substituted his own hypothesis of the cause of the accident. Thirdly, the Second Defendant appealed on the basis that the Judge’s findings were unsupported by the facts and were ones which no reasonable tribunal could have made.

The decision

The principle upon which the Claimant relied was an important one set out in Sylwester Dziennik v CTO Gesellschaft Fur Container-transport MBH & Co (2006) EWCA civ 1456, namely that a litigant is entitled to know of any misconduct including negligence alleged against him and to be provided with the proper opportunity to enable him to deal directly with and answer the allegation. The pleading points are not trivial or technical but fundamental to the fairness of civil proceedings.

However, the basis of the Judge’s findings was sufficiently encompassed in the allegation in the Defence that the Second Defendant was racing with the First Defendant and/or drove in such a way as to influence the driving of the First Defendant. Moreover the point was sufficiently dealt with in open speeches for the Second Defendant not to be taken by surprise. It had not been necessary for the Second Defendant to have had put to him in cross examination what he thought the effect of his conduct upon a reasonable person in the position of the First Defendant would have been.

As to the Judge’s findings of fact, it was in the view of the Court entirely open to him to make them. There was a lack of direct evidence about events immediately surrounding the two collisions. The Judge was bound to make certain inferences on the basis of his findings of primary fact in relation to the precise circumstances of the accident. Those were set out clearly in his Judgment and were reasonable and proper inferences. When driving on country roads in the summer it was not unusual to encounter slow moving agricultural vehicles driving in or out of fields. The normal consequence was that normal traffic gave way or stopped. What happened in this case was abnormal. The First Defendant had driven straight into the hay baler at substantial speed. The Judge found there were two reasons, firstly speed and secondly the fact that he was not paying attention to the road ahead. Both findings were plainly supported by the evidence. The Second Defendant was also negligent. He was driving too fast and too close to the car ahead. If these two young men were going to drive in close convoy at excessive speed each had to pay close attention to the driving of the other. Each driver was bound to be distracting the other from his proper task of concentrating on the road ahead. That was what the Judge found and his conclusion was well supported by the evidence. Appeal dismissed.

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