MAK KIT CHING KITTY AND ANOTHER v. TSANG YIU WING AND OTHERS

HCPI 811/1999

 IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 811 OF 1999

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J U D G M E N T

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Introduction

1.  This case comes about following a fatal road traffic accident in the early hours of 25 July 1996 which took place on Tuen Mun Road just outside Tsuen Wan.  I am only required to decide the issue of liability.

2.  The trial has been short.  I have not heard any live evidence.  On the afternoon of the first day I had a view of the locus of the accident which included driving past the location of the accident along the outer lane of the expressway which is where the fatal collision took place.

3.  Having heard the matter over two days on Wednesday and Thursday 4 and 5 October and having adjourned for judgment to be handed down the following week I received, on Monday 9 October, an application by the Plaintiff to admit the evidence of Mr Chau Sau Wang, now the Station Commander of Ma On Shan Fire Station, who on the date of the accident, as a Senior Station Officer, attended the site of the collisions and was in charge of the fire services rescue operation.  He has attached to his witness statement his report of what he and his colleagues did on that occasion, which is dated 27 July 1996 two days after the date of this matter.

4.  This therefore was an application by the plaintiff to reopen her case after the close of the evidence and speeches but before judgment.  The issue to which this new evidence was to be directed was the speed of the deceased’s car just prior to and at the moment of impact with a stationary LGV which resulted in the fatality.  I will be describing the course of these events in some detail presently.  Having heard the application I declined to admit this evidence for reasons which I will now give before I embark on my judgment in this action.

5.  As will emerge from my narrative of the events giving rise to the fatal collision between the deceased’s motor car and the 1^st Defendant’s LGV, the Defendants’ case has been that judging from the very severe damage to his motor car and the absence of any brake marks prior to the collision, the deceased was not paying attention to the road ahead and that he was speeding excessively.  This combination of excessive speed and the absence of keeping a lookout is said to amount to recklessness which, as the cases to which I have been referred show, would render any prior negligence by the Defendants inoperative, with the result that they should not be held liable for the deceased’s collision with the LGV.

6.  The purport of the evidence sought to be admitted was that the accident damage to the deceased’s car may not have been as serious as has been portrayed in the course of trial with the result that any finding as to excessive speed would need to be tempered by the effect of this new evidence.  The post-accident photographs, which I will be referring to presently, show that the bonnet of the motor car had been removed as had the roof of the car which supports the Defendant’s case of excessive, in terms of the 70 kph speed-limit, and great speed.  Mr Chau’s evidence is that the roof and the bonnet “may have” been removed in the course of the rescue operation when the fire services had to extract the deceased from the car and put out the fire in the engine compartment.

7.  In pressing for the admission of this evidence Mr Sarony, SC has accepted, as he must, that this evidence could and, by necessary implication as he now seeks to put it in, should have been called at the proper time and that it was only after the conclusion of the trial, as the various aspects of the accident had been debated, that the significance of the photographs showing the post accident state of the deceased’s car became clearer, particularly having regard to the fact that these would have been taken after the fire services had removed the deceased from the vehicle.

8.  Given the fact that this evidence is relevant going to a material issue in the determination of the action, Mr Sarony invites me to exercise my discretion in favour of its admission.

9.  The relevant principles are as Mr Ozorio, SC has related them in his submissions in opposition to the admission of the evidence.  It seems to me that the plaintiff needs to show exceptional circumstances to justify the calling of this evidence at such a late stage.  There is no doubt that I have a discretion to allow evidence to be called, even after judgment, but before any consequent order has been drawn up.  This is clearly demonstrated by the cases of Charlesworth v Relay Roads Ltd & Ors [2005] 1 WLR 230 and Navitaire Inc v Easy Jet Airline Co. Ltd (2005) EWHC 0282 (Ch), these principles having been applied in Hong Kong in cases such as Born Chief Co. v George Tsai [1996] 2 HKC 282 and Chow Siu Po v Wong Ming Fung unreported, HCAP 3/1998.  What can be said is that the court can be more flexible in its approach where, as here, the application is made before judgment.

10.  In dismissing the application I had decided, leaving aside questions of lateness and to the fact that the evidence should have been called at the appropriate time, that even if the damage shown in the photographs is after the arrival of the fire services who may have had to remove the damaged bonnet and had to remove the roof by welding equipment this would not have changed the overall impression as to the deceased’s pre-accident speed.  On any view the damage to this car, even after the fire services had made it appear worse in their rescue operations, amply supports a finding of excessive and great speed.  I have also had regard to the fact that the proposed witness, 10 years on, could never give firm evidence as to what was actually done by him and his colleagues, hence his use of terms as “may have”.  He cannot get much assistance from his contemporaneous report because it is silent as to the matters which he has been asked to speak to in his witness statement.  I am bound to say that had the fire services needed to hack off the roof of the vehicle with welding equipment or other means that this, I would have thought, would appear in the incident report as opposed to the basic statement that one finds in the report.  And so, I consider this evidence would not have been especially compelling due to its understandable vagueness, given the passage of 10 years since the accident.  It would not have altered the overall evidential picture and as I have already observed it could and should have been called during the course of the trial.  For all of these reasons I decided not to let it in at this late stage.

11.  I now propose to set out the facts as I find them.  Where it becomes necessary to provide reasons for any particular finding I will set out my reasons there and then.

12.  The evidence comprises a number of photographs which are exhibited in the case as well as a plan prepared by the Highways Department which provides all the necessary detail such as the location of various lamposts along the expressway.  There are also plans prepared by the police following their investigations at the site of the accident.  Because no witness has given evidence I have ignored their witness statements.  What I have had regard to are the recorded interviews of the 1^st and 3^rd Defendants taken by the investigating police officers.  The interviews contain the accounts given by these two Defendants as to their involvement in the events of that night.  I will indicate my approach to the contents of the interviews as and when I set out the parts which provide the narrative of what occurred.

The Parties

13.  The Plaintiff is the widow of Mr Daniel Fu who I will refer to as the deceased.  The 1^st Defendant was the driver of a light goods vehicle registration number FT2902 (“the LGV”).  He was an employee of the 2^nd Defendant who also owned the LGV.  The 3^rd Defendant is the registered owner and at the time the driver of a tow truck registration number FR6978 (“the tow truck”).

The Material Facts

14.  This matter is concerned with two separate collisions.  The first occurred when the 1^st Defendant fell asleep at the controls of the LGV and crashed into a lampost and the crash barrier which runs along the outer boundary of the offside carriageway of the expressway.  As a result of the collision, the LGV finished up lying horizontally across the outside lane, blocking it completely, with its rear also encroaching into the middle lane.  This occurred at about 2 a.m.  I find that the cause of this accident was due to the 1^st Defendant having fallen asleep at the wheel.  I say that because this is what he told the police who interviewed him.  He also told the police that prior to driving he had consumed three cans of beer.  I have no doubt that the combination of tiredness and the consumption of beer caused him to doze off as he drove.  This collision between the LGV and the crash barrier and the lampost was witnessed by the 3^rd Defendant who had been driving a safe distance behind.  On seeing what was happening he was able to drive his tow truck around the LGV and park it a few paces beyond the now stationary and disabled LGV.  The tow truck pulled well into the side of the outside carriageway so that its offside wheels were over and onto the hard shoulder of the carriageway.  This is all well illustrated in two police plans at pages C7 and 8 and in a sketch drawn at the scene by a police officer which is at page C9.  Pages 8 and 9 also have the final resting place of the deceased’s motor car which can be ignored until I recount his part in the tragic events of that night.

15.  Having parked his tow truck, the 3^rd Defendant put on his vehicle’s hazard warning lights including a flashing light on top of the driver’s compartment.  I find this as a fact having regard to what he told the police.  It seems to me that this must be true given that this is what tow truck drivers would do at a breakdown or an accident to indicate their presence and to warn other vehicles of their presence on or at the side of the road.  He then went to speak to the 1^st Defendant to see if he could assist him including giving him a tow.  The police interviews indicate the 1^st Defendant said that he would like to be towed to Tuen Mun. 

16.  The 3^rd Defendant then investigated the situation of the LGV and discovered that its front axle had hooked over the crash barrier so that it could not be released by his vehicle and towed away.

17.  The agreed police photographs are of much assistance in giving a reliable impression of the position of the LGV as the 3^rd Defendant found it. These are at bundle C.  In looking at the photographs of the LGV it should be remembered that they were taken after the deceased’s car had collided with its rear so that the rear may have been pushed forward by the impact.  Nevertheless, the important matters to observe are that its headlights were on, shinning into the side of the carriageway as shown in photographs 13 and 14 [C28 and 29].  Prior to its being collided into by the deceased’s vehicle, I am satisfied that its rear lights would have been on but, given its final position, at best horizontal across the carriageway, these lights would not have been visible to oncoming traffic, although perhaps their beam may have made some impression, not a great deal, on the road surface immediately below them.  As to visibility another feature is that as a result of its collision, the LGV knocked over a lampost with the result that its nearest source of illumination had been extinguished.  Mr Sarony SC, for the Plaintiff, invites me to conclude that in terms of its visibility to oncoming traffic the LGV would have presented, at best, a misleading picture.  There would have been light at the front, lighting up the bushes at the side of the road, then darkness from the driver’s compartment down the body of the LGV until one got to the rear lights which would have not been directly visible to oncoming traffic, but as I have already observed some small source of light may have been showing around the tail of the LGV.  At all events a very unclear situation.  Against this Mr Ozorio SC, who appears for all the Defendants, points to the fact that the other lamposts along the expressway would have been providing a general illumination — this was not a case of oncoming traffic travelling in darkness lit up by their own headlights — and he also draws attention to the fact that beyond the LGV, a few yards up the road, was the tow truck lights on including hazard warning lights and the light above the truck on and flashing.  The tow truck is shown at photograph 12 [C28] and these lights are visible and would have been visible and made an impression on oncoming traffic above the height of the cargo platform of the LGV.  This is well illustrated at photo 13 [C28].  This then is the factual situation as I find it to be in the aftermath of the 1^st Defendant falling asleep at the wheel and crashing into the side of the expressway.

The Fatal Collision

18.  From this I now turn to the fatal collision between the deceased’s saloon car and the LGV.  The 3^rd Defendant says that he did not see this collision as it happened.  All he can say as to timing is that it happened about three minutes after the first collision by the LGV.  The 1^st Defendant, who saw it happen, says that it was at about 2:10 a.m., so about 10 minutes after his collision.  He says that after he had come to a halt following his collision with the crash barrier about 10 vehicles had gone past his LGV without mishap.  It is not possible for me to be precise as to how long after the LGV had crashed into the side of the expressway the deceased’s motor car collided with the LGV.  All that I can say is that it was anything between 3 and 10 minutes which are the two times given by the 1^st and 3^rd Defendants respectively.  As to my approach to what these Defendants told the police in their interviews, I must take into account the fact that what they said was not under oath nor have these accounts been tested in cross-examination because they have elected not to give evidence.  Nevertheless, the message that I get from a reading of these interviews is that they had tried to be as frank and helpful as they could with the police.  The 3^rd Defendant had been approached on the basis that he was a witness and not as a person who was potentially culpable.  I am prepared to accept everything that he told the police as being as accurate as he could recollect it.  Similarly for the 1^st Defendant.  Although he was clearly in the frame for prosecution as being a driver at fault, he appears to have given a truthful account having made a number of declarations against interest.  He said that he had fallen asleep at the wheel, that he had consumed three cans of beer an hour beforehand and that he had exceeded the speed limit.  And so in his case as well I am prepared to accept everything that he had said as being an account that is as accurate as he could provide it.

19.  An absolutely crucial feature of this case, which will be determinative of its outcome is the nature of the deceased’s driving in the moments prior to the collision with the rear end of the LGV.  I take the lay out of the expressway first.  In this respect the view I had has been helpful although perhaps less helpful that one taken in the hours of darkness which would have been a better reproduction of the circumstances but nevertheless, the view has been of much assistance.  The expressway climbs out of Tsuen Wan quite steeply at first and then the slope becomes more gradual before levelling out and in fact, goes into a slight decline at the point of the collision.  The carriageway is straight, as the Highways Department plan shows it to be as do the defence photographs Exhibit D1-19.  This layout of the expressway, I am afraid, lends itself to speed.  The speed limit at that point is only 70 km an hour which, I suspect, is easily and frequently exceeded.  During the day the traffic can be heavy.  In the early hours it would, I suspect, be quiet but undoubtedly traffic would be steady, meaning that vehicles would be going through all the time.  The 1^st Defendant did say that about 10 vehicles had passed after he had collided with the crash barrier before the deceased had collided with his LGV.

20.  The photographs of the deceased’s motor car, with its upper structure sheered off by the speed and force of the impact indicate without any doubt at all that he must have been travelling very fast at the moment of impact.  It is impossible to be precise about this sort of thing but I am prepared to say that he was, on a balance of probability, travelling at well over 100 km an hour just before the moment of impact.  The other important feature is that there are no brake marks which preceded the impact.  This would indicate that the deceased had not observed the obstruction caused by the 1^st Defendant’s LGV across the offside lane.  Doing my best to re-construct what happened I am of the view that the deceased, at best, only saw the obstruction an instant before impact and attempted to steer to his left to avoid it.  This is supported by the fact that only the nearside upper structure of the saloon car remained intact, indicating that this part of the motor car had not struck the LGV.  The pale marks at the rear end of the LGV denote the area where the deceased’s car came into contact with the LGV [See photo 18 C31].  What appears to have happened is that the car, being a low vehicle relative to the LGV, effectively went underneath the rear end of the LGV removing the LGV’s rear lighting units.  It then appears to have careered onwards and according to the 1^st Defendant came into contact with the offside of the tow truck, although any contact with it was slight.  As to this, the evidence is inconclusive and in the event does not matter very much, and then came to rest in the position shown in the sketch at C8 and 9, where it caught fire.

21.  From these facts, I am satisfied that the deceased had been speeding excessively and that he was not paying attention to the road ahead.  Whether that was because he had dozed off at the time or because he was just not looking ahead at the time or because he got mixed signals from the lights that were showing from the LGV and from the tow truck is impossible to say.  What seems clear is that the lighting from the other lamposts, the nearest one to the LGV having been put out of commission by the 1^st Defendant’s negligent driving, would have afforded some additional illumination from which a reasonably careful driver, observing the speed limit and keeping a proper lookout would have seen the general nature of the obstruction ahead and driven safely into the middle or nearside lane to avoid a collision, as at least 10 vehicles had done before this tragic accident.

22.  For whichever of the three reasons which I have set out in the preceding paragraph, the deceased must be held to have been very seriously at fault.  The nature and extent of his culpability I will leave over until after I have considered the relevant legal principles to which both counsel have very helpfully referred me.

23.  In order to complete the factual situation, I should observe that the 1^st Defendant was, inevitably, prosecuted for the offence of careless driving to which he pleaded guilty and was fined and disqualified for three months.  He admitted having fallen asleep at the wheel.  No action was taken against the 3^rd Defendant.  The deceased’s and the 1^st Defendant’s vehicles were examined by the Government Vehicle Examiner who found that both vehicles had properly functioning steering and brakes.

The Issues

24.  Mr Ozorio accepts that the 1^st Defendant must be found to have been negligent.  Nevertheless, he submits that his negligence was not causative of the deceased’s collision with the LGV, with the consequence that his client cannot be held liable for what happened to the deceased.  He has shown me some authorities which he says support such a conclusion on these facts.  If he fails in this submission, he then contends that the deceased must be guilty of contributory negligence of the highest order — certainly over 80%.  Mr Sarony submits that the 1^st Defendant’s admittedly negligent driving was undoubtedly an operative cause of the collision for which the deceased must be contributorily negligent by up to 50%.

25.  As to the 3^rd Defendant, Mr Sarony submits that he is also liable to be found culpable.  Having decided to stop and offer a tow, this after all being his occupation, he should have taken steps to warn oncoming traffic.  He should have heeded the advice of the Highway Code.  This is at page 124 of the Code.  When happening upon an accident the Code says:

“Do not leave your vehicle where it could become a hazard to other traffic, but park at the roadside between the accident site and oncoming traffic and where your vehicle can easily be seen … use your hazard warning light.  At night you can light the accident site with your headlamps.”

Alternatively, he submits that he should have taken some other steps to warn oncoming vehicles such as by deploying a luminescent warning triangle.

No Case against the 3^rd Defendant

26.  I wish to dispose of this part of the case now.  There simply is no case against this Defendant.  I find that in the circumstances that he found himself he took the very sensible course of driving around the LGV and parking ‘leeward’ of it, as it were, having pulled over into the hard shoulder.  He already had his headlights and rear lights on and thereafter, on my finding, he turned on his hazard light and the flashing beacon on top of the tow truck.  Mr Sarony submits that certain additional duties are to be cast on him because of his financial motive in soliciting the 1^st Defendant’s custom as a potential tow.  Mr Sarony does not suggest that he could have made any criticism of an ordinary motorist who had pulled over as the 3^rd Defendant had to see if he could help.  Mr Sarony submits that the 3^rd Defendant should have somehow secured the scene by giving adequate warning to the oncoming traffic.  He has relied on the passage in the Highway Code  which would suggest that he should have parked ‘windward’ of the LGV.  I am not entirely sure how this could apply to a tow truck who would have to tow in the direction of the flow of the traffic.  Inevitably, the tow truck would have had to park where the 3^rd Defendant had parked to take on the tow.  At all events, the 3^rd Defendant had reacted perfectly reasonably by going round as he did and then putting on all his available illumination which would have been visible to oncoming traffic over the top of the LGV’s cargo platform.  As to placing a luminous warning triangle some distance to the rear of the LGV to warn oncoming traffic, Mr Sarony, I do not believe presses this with any great enthusiasm.  It would have been a dangerous thing to attempt, probably ineffective and certainly contrary to the advice in the Highway Code [See page 123].  In my judgment, the Plaintiff’s advisers have gone a Defendant too far in seeking to fix the 3^rd Defendant with any sort of liability.  The action against him must fail with the consequence that there must be judgment to him against the Plaintiff together with an order nisi that the Plaintiff must pay the 3^rd Defendant’s costs to be taxed on a party and party basis.

The Case against the 1^st Defendant

27.  It is accepted that the 2^nd Defendant must be vicariously liable for the 1^st Defendant as employer and owner of the LGV.  Their cases stand and fall together.

28.  The starting point is that the 1^st Defendant was guilty of a bad case of negligent driving — this on any view of the matter.  Mr Ozorio accepts that this Defendant was negligent.  The crucial question then becomes this: was the 1^st Defendant’s negligence (and I will need to say something about nuisance presently) causative of the collision between the deceased’s motor car and the LGV?  Mr Ozorio submits that whilst it may have provided the background to the accident it was the reckless driving of the deceased, going beyond negligence even of the worst kind, that caused this accident.  The obstruction caused by LGV was there to be seen but it was the nature of the deceased’s driving, which I have already sufficiently described, which was the sole operative cause of his accident.

The Cases

29.  Mr Ozorio has relied on two English Court of Appeal decisions which are the mainstay of his submission.  The first is Rouse v Squires (1973) 1 QB 889 and the other Wright v Lodge (1993) 4 All ER 299.  I need to recount the facts of both these cases in order to identify the principle which they establish.  In both cases the headnote of the reports sufficiently sets out the facts.  In Rouse v Squires, the situation was this:

“On a frosty December night an articulated lorry skidded into a jack-knife position, obstructing the nearside and centre lanes of the north-bound three-lane carriageway of the M1 motorway. A motor car being driven in the centre lane collided with the lorry and stopped with its rear lights on.  Another lorry driver who had been following parked with the handbrake on in the nearside lane some 15 feet short of the jack-knifed lorry with headlights on to illuminate it.  Five to ten minutes later, the defendant, driving a lorry in the same direction at 50 miles per hour, with dipped headlights, came within view of the collision scene some 400 yards away.  He did not realise the vehicles were stationary until within 150 yards.  Seeing the parked lorry, he braked, moved into the centre lane and then realised that lane was blocked.  Braking harder, he skidded and collided with the parked lorry which was pushed forward and knocked down and killed R who was assisting at the scene of the collision.

R’s widow brought an action against the defendant, which was compromised.  The defendant took third party proceedings against the owners and driver of the jack-knifed lorry, alleging negligent driving of that lorry and nuisance and claiming a contribution.  The third parties contended that their driver’s negligence was not causative of R’s death.  The judge found that the defendant had driven extremely negligently, that he was not keeping a proper lookout, that he should have observed that the vehicles were stationary long before he did and that his speed was excessive in the frosty conditions.  He found that the scene of the obstruction was adequately lighted to warn any driver keeping a proper lookout and that the situation arising from the third party driver’s negligence was not causative of the accident which was attributable to the defendant’s negligence.

On appeal by the defendant:

Held, allowing the appeal, that if a driver negligently obstructed a highway and created a danger to other road users (including those driving too fast and not keeping a proper lookout but not those who deliberately or recklessly drove into the obstruction) then his negligence contributed to the causation of an accident of which the immediate cause was the negligent driving of another driver but which would not have occurred but for the continuing danger from the obstruction he had caused (post, pp. 898C-E, 899H — 900A, 901C-D, H — 902A); accordingly, while the immediate cause of the accident was the defendant’s negligent driving, there had been no break in the chain of causation between the third party driver’s negligence and the accident, and the third party driver was one-quarter to blame.”

Cairns LJ at page 898C-E analysed the situation in this way:

“If a driver so negligently manages his vehicle as 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 lookout, 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.”

Mackenna J at 899H explained it in this way:

“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.”

Whilst this may be so, Buckley LJ held that if the obstruction no longer constituted a danger then the chain of causation would be broken.  At 901C he said this:

“But when there is ample visibility and ample opportunity for the driver of an oncoming vehicle to see and appreciate the nature and extent of an obstruction and to take evasive action, then the obstruction does not constitute a danger, and in such a case there is a break in the chain of causation between the prior negligent act which caused the obstruction and the immediate consequences of the latter negligent act of a driver on the highway who causes the accident.”

It is this, which Mr Ozorio says, happened in this case.  The obstruction caused by the LGV was there to be seen.  Nevertheless, on this occasion the deceased had failed to see the obvious obstruction which was greatly exacerbated by the high speed that he was travelling at.

30.  In Wright v Lodge,the facts were these:

“The respondent’s car broke down on the eastbound carriageway of an unlit dual carriageway at night when visibility was very poor owing to fog.  The car came to a stop in the nearside lane of the carriageway and while the respondent was attempting to start it an articulated container lorry driven by the appellant crashed into the back of it, causing a passenger in the rear seat of the car to be seriously injured.  The lorry then veered out of control across the central reservation and came to rest on its side in the opposite westbound carriageway, where it was struck by three cars and a lorry.  The driver of one of the cars was killed and another driver was injured.  At the time of the collision with the respondent’s car the appellant’s lorry was travelling at an excessive speed.  The injured driver and the personal representative of the dead driver sued the appellant and the respondent, while the injured passenger in the respondent’s car sued the appellant, who joined the respondent as a third party.  The appellant admitted liability in all three actions but claimed contribution from the respondent.  The judge found that the appellant had been driving recklessly and that that was the sole cause of the injuries to the dead and injured drivers since it was the appellant’s reckless driving which had caused the lorry to end up on the westbound carriageway.  The judge accordingly dismissed the contribution claims relating to the dead and injured drivers.

Held — The driver of a motor vehicle could owe different duties of care to different road users since different questions of foreseeability, causation and remoteness could arise in respect of different road users affected by his negligence.  Thus, if his vehicle was involved in a collision with another vehicle partly as a result of his own negligence, he was not necessarily responsible for subsequent events which occurred as the result of another driver’s reckless driving which caused damage which would not have occurred if that driver had merely been driving negligently, since reckless driving was in a different category from negligent driving and an obstruction on the highway which was a danger only to a reckless driver was not necessarily a relevant danger in considering the liability of the person who negligently caused the obstruction to be present.  On the facts, although the respondent had been negligent in not removing her car from the carriageway onto the verge, the sole cause of the lorry ending up on the westbound carriageway and the drivers’ consequent death and injuries was the appellant’s reckless driving, which was the only relevant legal cause of that event. The judge had accordingly been correct to find that the respondent was not liable to make a contribution in respect of the appellant’s liability in regard to the dead and injured drivers’ claims.  The appeal would therefore be dismissed.”

I need to refer to two passages from the judgment of Parker LJ. At 306C he said this:

“… the case (Rouse v. Squires) was in reality concerned with the question whether or not an obstruction constituted a danger.  It does not therefore directly assist the solution to the present problem.  Indirectly however it does in my judgment afford assistance in that it recognises that reckless driving is in a different category from negligent driving and that an obstruction which is only a danger to a reckless driver does not constitute a relevant danger.”

At page 307E-J, he has set out the proper approach in this class of case:

“In any event approaching the matter as if he were a jury and taking a common sense view, he was, as we are, clearly entitled to conclude that the presence of the Scania in the westbound carriageway was wholly attributable to Mr Lodge’s reckless driving.  It was unwarranted and unreasonable.  It was the violence of the swerve and breaking which sent his lorry out of control. Such violence was due to the reckless manner in which he was driving and it was his reckless speed which resulted in the swerve, loss of control and headlong career onto, and overturn on, the westbound carriageway.  It is true that it would not have been there had the Mini not obstructed the nearside lane of the eastbound carriageway but the passages which I have cited show clearly that this is not enough.  It does not thereby necessarily become a legally operative cause.  The subsequent conduct of Mr Lodge was such that any judge or jury could in my judgment exclude Miss Shepherd’s conduct as being causative of the subsequent accident.  The judge did exclude it and in my judgment he was right to do so.”

31.  What I get from these cases therefore is that reckless driving will break the chain of causation between a previous piece of negligent driving and a subsequent accident.  This therefore is the setting against which Mr Ozorio would wish me to decide the outcome of this case as between the Plaintiff and these two Defendants.

The Plaintiff’s Case

32.  Mr Sarony has pleaded this matter in both negligence and nuisance.  I wish to begin the consideration of his case by deciding whether the elements of the tort of public nuisance are present.  Put simply, Mr Ozorio has submitted that this matter can only be considered as a case of negligence.  This was the aftermath of the first accident caused by the 1^st Defendant’s negligent driving and all I need to decide is whether that negligence remained legally operative by the time of the second accident, given the nature of the deceased’s driving.

33.  As to whether this obstruction amounted to a public nuisance, Mr Sarony has cited Howard v Walker [1947] KB 860 which proposes that obstruction of the highway will constitute obstruction of a road users right of free passage.  Factually, this case is so far removed from the one that I have to decide that I really get no assistance from it.  I believe that the case of Dymond v Pearce is of more assistance.  It is reported at [1972] 1 QB 496.  This was a case tried at Exeter Assizes by Bridge J (as he then was).  The facts were that a lorry driver had parked his lorry on the highway on an August bank holiday evening intending to leave early the next morning.  The lorry which was 7½ feet wide was parked under a street lamp.  The driver had left the lorry lights on and the judge found that its was visible some 200 yards, when at 9:45 p.m. a motorcyclist with the Plaintiff as his pillion passenger crashed into it.  The judge found that the sole cause of the accident was the motorcyclist’s negligence, who was not looking where he was going.  He held that the lorry driver and its owner were not negligent and that the parked lorry did not constitute a nuisance and that even if it did it was not the cause of the accident and that the damage was not a foreseeable consequence.  The Court of Appeal upheld the judge’s finding that the lorry driver and the lorry owners had not been negligent but nevertheless, the court held that leaving a lorry for a considerable period for the driver’s convenience constituted a nuisance by obstruction which would be actionable if that obstruction caused damage to a member of the public.

34.  Mr Sarony is anxious to establish a case based on nuisance having regard to how the burden of proof plays in nuisance as opposed to an action merely based on negligence.  Reliance is placed on part of Denning LJ’s judgment in Southport Corporation v Esso Petroleum Co. Ltd, (1954) 2 QB 182:

“One of the principal differences between an action for a public nuisance and an action for negligence is the burden of proof.  In an action for a public nuisance, once the nuisance is proved and the defendant is shown to have caused it, then, the legal burden is shifted on to the defendant to justify or excuse himself.  If he fails to do so, he is held liable, whereas, in an action for negligence the legal burden in most cases remains throughout on the plaintiff.  In negligence, the plaintiff may gain much help from provisional presumptions like the doctrine of res ipsa loquitur but nevertheless, at the end of the case, the judge must ask himself whether the legal burden is discharged.  If the matter is left evenly in the balance, the plaintiff fails.  But in public nuisance, as in trespass, the legal burden shifts to the defendant and it is not sufficient for him to leave the matter in doubt.  He must plead and prove a sufficient justification or excuse.”

In Dymond v Pearce ibid.  Sachs LJ at page 501C-E set out what constituted a public nuisance.  He held that the relevant law was that stated by Lord Evershed MR in Trevetts v Lee [1955] 1 WLR 113, 117:

“The law as regards obstructions to highways is conveniently stated in a passage in Salmond on Torts, 11^th Edition, p. 303.  ‘A nuisance to a highway consists either in obstructing it or in rendering it dangerous’ and then a number of examples are given, which seem to me to show that, prima facie, or at any rate, when you speak of an obstruction to a highway, you mean something which permanently or temporarily removes the whole or part of the highway from the public’s use altogether.”

At page 502C-D, Sachs L.J. said this in relation to the facts of Dymond v Pearce:

“Leaving on one side those in special positions … the common law right of users of highways are normally confined to use for passage and re-passage and for incidents usually associated with such use, such as temporary halts and those emergency stops which often give rise to difficulties, and have had to be considered in a number of authorities.  The leaving of a large vehicle on a highway for any other purpose for a considerable period (it is always a matter of degree) otherwise then in a lay-by prima facie results in a nuisance being created, for it narrows the highway.” 

It was on this basis that the Court of Appeal reversed Bridge J’s conclusion that no nuisance had been created but felt able to uphold him because the collision had been caused entirely through the motorcyclist’s fault who was not looking where he was going.

35.  Mr Sarony contends that this therefore was a nuisance.  Mr Ozorio submits that the shortlived and temporary nature of the obstruction would take it out of what the court would conclude was a nuisance.  “It is always a matter of degree” [See Sachs LJ supra].  For my part I would hold that in these circumstances this obstruction would not amount to a nuisance.  This was the temporary aftermath of an accident.  But even if I am wrong in that conclusion, and this did amount to a public nuisance Mr Sarony would still need to show that this obstruction caused the accident [Sachs LJ at 502C ibid].  This being so he, and I, in having to decide the matter, are driven back to see what was the real and effective cause of the accident.  Mr Ozorio says that it was the deceased’s reckless driving.

What was the Cause of the Accident?

36.  This must determine the issue of liability.  I have not found this an entirely easy case largely because this was not a collision in daylight.  Had it been I do not believe that the deceased would have had any sort of case.  But this was at night and the 1^st Defendant had contrived to knock over the lampost closest to the LGV’s last resting place.  Nevertheless, lights were showing and I have no doubt the lights from both the LGV and the tow truck just beyond it were there to be seen in the offside carriageway.  Any driver keeping a proper lookout would have seen them.  Any driver observing the speed limit or even exceeding it by a reasonable margin would have had time to take evasive action.  I have no doubt at all that the deceased was not paying any proper attention.  He drove straight on until just before the moment of impact.  To have driven in this manner, that is to say without paying attention and at great speed, the accident damage amply confirms this, must amount to recklessness.  It goes well beyond negligence.  The fact that the deceased had not attempted to brake before impact demonstrates beyond any doubt that he had not seen what was there to be seen.  There were lights from all the sources that I have already referred to.  The prudent driver would have at least slowed down to get a better look, and reacted accordingly.  This is a straight piece of road.  Visibility to the obstruction was over 200 metres at that point.

37.  Ultimately, I am satisfied beyond any doubt, that the sole cause of this tragedy was the deceased’s reckless driving at the time.  This being so the cases of Rouse v Squires and Wright v Lodge, supra lead me to the conclusion that the correct order is to dismiss the action against both the 1^st and 2^nd Defendants.  It also seems to me that even if the LGV was causing a public nuisance this cannot avail the Plaintiff because I have found that the sole cause of the accident was the deceased’s reckless driving.

38.  In such circumstances these two Defendants must also have their party and party costs paid by the Plaintiff.  This order will be an order nisi.