Fagan v Jeffers

Where a driver crosses a carriageway through stationary opposing traffic to turn into a side street, the manoeuvre’s inherent danger requires the driver to proceed with utmost care. The driver should use crawling and peering where necessary and should not complete the crossing until satisfied that no vehicle is about to pass inside the stationary traffic into the area to be crossed. Obstructed visibility increases the need for caution. A two-wheeled road user may be entitled to use a practicable gap, but remains under a duty to anticipate turning vehicles and proceed cautiously. Liability may therefore be shared, and an appellate court will rarely interfere with a trial judge’s apportionment absent a compelling reason.

The claimant was injured when his motor scooter collided with a car driven by the defendant. The collision occurred as the defendant crossed the southbound carriageway through an area marked KEEP CLEAR to turn into a side street, while the claimant travelled through a gap beside stationary vans.

The claimant’s damages were agreed. The trial judge found both drivers negligent and apportioned responsibility equally, entering judgment for half the damages against the defendant. The defendant appealed, arguing that he was not negligent or, alternatively, that his responsibility should be less than the claimant’s. The central issue was whether the defendant had exercised sufficient care before crossing the path available to the claimant.

The appeal was unanimously dismissed.

1. The defendant’s manoeuvre was inherently dangerous because he was crossing opposing traffic through a junction while stationary vans obstructed his view. A driver undertaking such a manoeuvre must proceed with the utmost care. The driver should, by crawling and peering where necessary, satisfy himself that no vehicle is about to pass the stationary traffic on the inside into the area he needs to cross.
2. The trial judge had sufficient evidential foundation for finding negligence. The layout permitted a two-wheeled vehicle to pass through the gap, and the vans substantially obstructed the defendant’s view. The judge’s reasons were adequately articulated, and the conclusion was not perverse.
3. Clarke v Winchurch was distinguishable. In that case the car had emerged extremely slowly and carefully, effectively inching beyond the stationary bus. There was no comparable finding here. The present area was not the defendant’s exclusive space; it was available to both road users, subject to the inherent danger requiring caution.
4. The claimant was also negligent. Although entitled to proceed through the gap, he had to recognise the risk that vehicles might use it to access the side street and that their opportunities for vision would be restricted.
5. The trial judge’s equal apportionment disclosed no reason for appellate intervention. The defendant was ordered to pay the respondent’s costs of the appeal.

• Court of Appeal (Civil Division): [2005] EWCA Civ 380. The defendant’s appeal against the finding of equal responsibility was dismissed.
• Central London County Court: His Honour Judge Rich QC found both parties negligent in equal shares and entered judgment for the claimant for £18,750 against the defendant.