Whittle v Bennett [2006] EWCA Civ 1538

B3/2006/0450, B3/2006/0450(A)

[2006] EWCA Civ 1538

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

(HIS HONOUR JOHN PREVITE QC)

Venue Royal Courts of Justice

Date Wednesday, 1 st November 2006

Strand

London, WC2

B E F O R E:

SIR ANTHONY CLARKE

(THE MASTER OF THE ROLLS)

SIR IGOR JUDGE

(THE PRESIDENT OF THE QUEEN’S BENCH DIVISION)

LORD JUSTICE LEVESON

Between

WHITTLE (A Patient by his litigation friend Deborah Heron)Appellant

- v -

Between

BENNETTRespondent

(DAR Transcript of WordWave International Limited

A Merrill Communications Company

190 Fleet Street, London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

MR M REDFERN QC & MR P GRUNDY (instructed by Messrs George Ide, Phillips) appeared for Appellant.

MR M TURNER QC & MR J BATE-WILLIAMS (instructed by Messrs EL Murphy & Co) appeared for Respondent.

J U D G M E N T

LORD JUSTICE LEVESON:

Shortly

[1]after 8.30pm on 30 April 2002, a serious road traffic accident occurred on the A25 Dorking to Reigate Road when a Ford Mondeo motorcar driven by the Appellant, John Whittle, performed a U-turn from the nearside of the carriageway notwithstanding the presence or near approach of two Vauxhall Nova motor cars, the second of which was driven by the Respondent, James Bennett, which had been travelling behind him. The first Nova managed to pass the Mondeo before it had advanced too far into its manoeuvre. Mr Bennett’s Nova, however, struck the car at about the midpoint of its offside. Mr Whittle was catastrophically injured and, by his next friend, commenced proceedings against Mr Bennett on the basis that he was driving too fast and too close to the other Nova. The issue of liability came before HHJ Previte sitting as a Judge of the High Court, who dismissed the claim on the basis that Mr Bennett’s driving was not the cause of the accident, deciding in the alternative that, if he was wrong about that, Mr Whittle’s contributory negligence was 80 per cent.

[2]With the leave of the full court (Pill LJ and Dyson LJ) after refusal of permission by Smith LJ, Mr Whittle appeals this decision arguing that the judge was wrong in relation to causation and apportionment. At trial and in the notice of appeal, it was argued that Mr Bennett was 30 per cent to blame; in the skeleton argument, that figure is now put at 50 per cent. The Accident

[3]The primary facts (as opposed to a number of the inferences and conclusions from those facts) are not in issue, save in one particular to which I shall return. The A25 is a single carriageway subject to a speed limit of 50 mph. Mr Whittle was driving his two passengers, Carole Noyce and her daughter Jodie, to a house set back from the road frontage which he had driven past. When he realised that he had done so, he slowed down and activated his nearside indicator. He did not stop, but continued at about 5 mph close to the curb. Prior to commencing the turn, Mr Whittle’s line of vision back down the road was between 144 and 160 metres to a substantial bend (the difference being dependent upon whether, coming out of the bend, a vehicle was nearer to the curb or nearer to the centre of the road). Referring to Mr Bennett as the defendant, the judge described what happened in these terms: ”There was nothing to obstruct the view of the defendant, Mrs Noyce and Jodie Noyce to the rear of the Mondeo. When the Mondeo began the U turn Mrs Noyce looked ahead only. The Mondeo’s progress as it made the U turn was slow to begin with, gradually increasing in speed to about 9 mph as it made the turn. At a point a little over the centre line, in the hatched area at the centre of the road, the Mondeo was struck at the centre of its offside by the Nova driven by the defendant. None of the occupants of the Mondeo had seen the Nova approaching before or during the U turn. Nor had any of the occupants seen another Vauxhall Nova, driven by Mr John Taylor, which was a very short distance ahead of the defendant’s Nova, which managed to get past the front of the Mondeo.”

[4]Before arriving at the scene of the accident, the two Nova cars had passed a van at a speed which was the subject of dispute at the trial. It is sufficient to identify the finding of fact made by the judge to the effect that the two cars passed the van at a speed of not less than 70 mph and continued at that speed as far as the bend in the road where Mr Bennett, at least, touched his brakes, which must have slowed him around the bend.

[5]The learned judge then went on to deal with the approach to the place of the accident and said this: ”After the left hand bend Mr Taylor saw the Mondeo stationary on the left side of the road, indicating left. As he ‘came to overtake it’ the Mondeo ‘went to do the U-turn’. Mr Taylor got past the Mondeo. The defendant saw Mr Taylor’s right hand indicator come on and he noticed a stationary, or very slow moving, Mondeo on the nearside, with it’s nearside indicator on. He followed Mr Taylor. I accept the defendant’s evidence that he thought that the Mondeo was slowing down to stop and that he put on his right hand indicator and followed Mr Taylor who had moved to the right to overtake the Mondeo and whose offside wheels were in the hatched area of the road. The defendant’s evidence was that at this stage he was still 4-5 car length’s behind Mr Taylor and followed the line being taken by Mr Taylor.”

[6]Mr Redfern QC, who did not conduct the trial and was not responsible for the original skeleton argument placed before this court, introduced a new argument at this point of the narrative. He relied on the judge’s account of the material placed before the court which emanated from Mr Taylor, although Mr Taylor himself did not give evidence in the trial. In his first statement to the police, which the learned judge recounted, taken on the day of the accident, Mr Taylor explained that as he got round the bend: “… there was a Mondeo stopped dead at the side of the road, indicating left, there was a car ahead overtaking the Mondeo. As I came to overtake it, it decided to do a U-turn, as it went to do the U-turn I got past it, I was on the opposite side of the road”.

[7]The material placed before the judge also included a further statement made three months later, in which he described his earlier driving and put his speed not at 70 mph as in his original statement, but at 55-60 mph. He then said that the Mondeo had not signalled prior to attempting the U-turn. The judge observed:

“I am confident that I can accept what he [that is to say, Mr Taylor] said to the police on the day of the accident as being reliable evidence.”

[8]Mr Redfern relies on this observation and argues that this confidence as to the reliability of this account to the police is inconsistent with the learned judge’s specific finding of fact that he accepted Mr Bennett’s evidence that he followed Mr Taylor, who had moved to the right to overtake the Mondeo, and whose offside wheels were still in the hatched area of the road.

[9]In my view, the learned judge was doing no more than resolving the internal inconsistency in the two accounts to the police, preferring the earlier to the later. In this part of the judgment, he was simply recounting the evidence. He was not finding, as a fact, that the first account which Mr Taylor provided was accurate or that the phrase “the opposite side of the road” did not include the hatched area. In any event, the earlier statement cannot be entirely reliable, because the learned judge went on to find that the Mondeo did not come to a stop.

[10]I move to the description which the learned judge gave of the accident. He said: ”Mr Pollitt and the defendant say that the defendant touched his brakes as he rounded the bend. This must have reduced the defendant’s speed a little. I accept that the distance at which the defendant followed Mr Taylor down the straight was about 4-5 car lengths. It could not have been as close as 1 car length (as estimated by Mr Pollitt at the time of overtaking) because if the Novas were that close to each other as the Mondeo began the U-turn both cars would have got past the Mondeo. “By the time the defendant realised that the Mondeo was making a U-turn he was close to it. The defendant’s evidence was that he was about 20 metres away from the Mondeo when he saw Mr Taylor pull out to overtake, and about 10 metres from the Mondeo when he slammed on the brakes. Prior to slamming on the brakes he said that he had steered for the offside, but ceased doing so when he saw a cyclist approaching on that side of the road. No one else mentions seeing a cyclist. If there had been a cyclist he or she would have been an eye witness to the accident and it seems to me likely that he or she would have remained at the scene and made contact with the police or someone at the scene. I accept that the defendant began to follow Mr Taylor but not that he ceased to do so because he saw a cyclist. I find that as soon as the defendant realised that he would not get past the Mondeo on the offside he slammed on the brakes. It is agreed that the skid marks extend for 10-11 metres. The defendant slowed a little when rounding the bend in the road and he probably slowed a little when he saw the Mondeo and saw Mr Taylor pull over to the right to overtake the Mondeo. Taking into account the views of the experts as to the probable distance of the Nova from the Mondeo at the time when the defendant braked, the length of the skid marks and the estimates of the defendant’s speed at impact, I find that at the time when the defendant slammed on the brakes he was moving at 60 mph. Allowing for reaction time of 18 metres at 60 mph the defendant was probably about 30 metres from the Mondeo when he realised that the Mondeo was making a U-turn. At that distance and at a speed of about 60 mph an accident was inevitable.” Liability

[11]In order to provide the context within which the allegations of negligence levelled against Mr Bennett have to be judged, it is appropriate to do so in the words of the judge, whose conclusions on this topic have not been challenged by Mr Redfern. Without making a specific finding of fact as to whether Mr Whittle put on his right-hand indicator (as described by his passengers but not mentioned by either Mr Bennett or Mr Taylor) he said:

“If the claimant did in fact put on his right hand indicator I find that a reasonable driver, approaching from behind the Mondeo would, in the circumstances, think that the Mondeo was about to continue going towards Dorking and was using the indicator to show that it was re-entering the carriageway. In my judgment no reasonable driver would think that the Mondeo was about to make a right turn: there was no road in to which to turn on the other side of the road and the Mondeo was in the wrong position in the road for making a right turn. “Nor, in my judgment, could a reasonable driver who had seen the Mondeo moving slowly close to the curb using the left hand indicator and who later saw, or should have seen, the Mondeo use the right hand indicator, be expected to anticipate from this that the Mondeo was about to attempt a U-turn. Whilst there was sufficient road width at this point on the A.25 for a Mondeo to make a U-turn it was, in my judgment, a wholly unexpected and extraordinary manoeuvre for the Mondeo to make in the circumstances. The A.25 is a busy road; the location of the Mondeo was only 144-160 metres from a bend which obscured vehicles further back; and there were in fact the two Novas on the straight stretch of road behind the Mondeo. By the time the Mondeo began the U-turn the two Novas must have been at least half way down the stretch of the road from the bend to the Mondeo. They were in a position in which a driver would be entitled to conclude that any person exercising reasonable care in the Mondeo would be aware of their presence.”

[12]What then is the basis for maintaining this claim? In the lower court, Mr Grundy (then acting for Mr Whittle alone) submitted that Mr Bennett was negligent in two respects, namely in exceeding the 50 mph speed limit and in driving too close behind Mr Taylor. It was argued that Mr Bennett should also have complied with the Highway Code (paragraph 105 of which being to the effect that drivers should allow at least a 2-second gap between them and the vehicle in front on roads carrying fast traffic). In fact, he was very much closer and, thus, negligent in that regard.

[13]As to speed, the learned Judge found as a fact that Mr Bennett was moving at 60 mph when he applied the brakes of his car as he saw the Mondeo and he accepted that exceeding the speed limit was unlawful. He went on accurately to observe, however, that whether this was negligent depended on the circumstances. He said: ”In this case if the Mondeo had progressed on its own side of the road, the defendant would have been able to overtake safely. Because the defendant had no reason to anticipate a U-turn he was not, in my judgment, negligent in driving at 60 mph at this time.”

[14]In relation to the distance that Mr Bennett was travelling behind Mr Taylor, the learned judge accepted Mr Bennett’s own evidence that he was “2 seconds or 4-5 car lengths” behind the car in front and that this was not the distance recommended by the Highway Code. He performed the calculation using the average car length of four metres that “4-5 car lengths” amounted to 16 to 20 metres. Alternatively, in travelling for two seconds at 50 mph, a car will cover 44 metres or 11 car lengths. As to this argument, the judge observed: ”This is a duty which the defendant owed to Mr Taylor to avoid a collision with him in the event of Mr Taylor making an emergency stop. It is not, in my judgment, a duty which the defendant owed to the claimant and breach of it was not a cause of the accident.”

[15]Mr Grundy also argued before the judge that the combination of the two elements of negligence had caused the accident, on the basis that if Mr Bennett had been travelling at the legal speed limit of 50 mph and at the recommended distance (which would have amounted to 40-48 metres), he would have been able to avoid the Mondeo as it performed its U-turn.

[16]The learned judge answered this argument in two ways. First, he said that although drivers were expected to anticipate carelessness on the part of other road users, to expect them to anticipate a U-turn on an A road into the path of following vehicles was an “unattainable counsel of perfection”. He then went on to conclude that the distance between Mr Bennett’s Nova and the Mondeo when Mr Bennett realised that the Mondeo was performing a U-turn would have been about 45 metres. If travelling at 50 mph he would not have been able to stop or avoid the collision. Thus, the judge said: ”…the gross negligence of the claimant in making the U-turn in the circumstances I have set out, excluded the defendant’s conduct in respect of his speed of about 60 mph or not keeping the recommended distance behind Mr Taylor as being causative of the accident.”

The Appeal

[17]In the skeleton argument prepared by Mr Christopher Purchas QC, then advising Mr Whittle, the arguments rejected by the judge were advanced together with a further factual submission not advanced before the judge. That is to the effect that Mr Bennett was so close to the car in front that his view of the road ahead was restricted, said to be confirmed by his evidence to the effect that he first saw the Mondeo when the Nova driven by Mr Taylor unblocked his view by moving to the right and, after became blocked again, when Mr Taylor swerved to go round it. It is said by Mr Turner QC for Mr Bennett that this submission is the reverse of a submission Mr Grundy did, in fact, make and, not surprisingly, is not foreshadowed in the skeleton argument deployed for the trial or the Notice of Appeal. Mr Redfern did not pursue this point orally, but it is only appropriate to deal with it.

[18]Mr Turner points to the thrust of the evidence that Mr Bennett saw Mr Whittle’s car moving very slowly, indicating to the nearside, and assumed that it was slowing to stop and the cross-examination which elicited that he had just emerged from the bend when he saw the Mondeo. It was not suggested by Mr Grundy that Mr Bennett was driving so close to Mr Taylor that his view was obstructed so as materially to delay his opportunity to react. What was specifically put was that he saw it “a fraction of a second” after Mr Taylor indicated and moved to the right. More significantly, it was also put that, following Mr Taylor’s car to overtake the Mondeo, it was only “immediately after” he was in the hatched area performing his overtaking manoeuvre that it was apparent the Mondeo was not carrying on in the same direction but coming across Mr Taylor’s bows. Mr Bennett agreed with that proposition. The point that Mr Grundy then wanted to develop was that had Mr Bennett been driving at a lesser speed or further back, he would have had more time to react. In my judgment, it would be quite wrong to allow the appellant now to deploy a case on facts not advanced before the trial judge, namely that Mr Bennett was unsighted for a sufficient time that has causative relevance to this accident. In any event, Mr Bennett had anticipated the Mondeo and was preparing to pass, as it accelerated ostensibly to rejoin the carriageway: there is no suggestion that he would not have been able to complete that exercise had the Mondeo not commenced its U-turn. Sighting had nothing to do with it.

[19]Reverting to the arguments advanced before the trial judge, Mr Redfern forcibly argued that the learned judge was wrong to conclude that the duty to maintain a safe distance from the car in front was a duty to avoid a collision in the event that the front car made an emergency stop and was wrong also to conclude that it was not a duty owed to Mr Whittle or that breach of it was not a cause of the accident. He recognises that the defendant is only liable for the kind of loss that falls within the scope of a particular duty to care but submits that the duty on the defendant in this case was to travel at a safe distance behind the vehicle in front to ensure that he had sufficient time and space to deal with emergencies that might arise should the vehicle in front have to swerve to avoid a collision and that if the following vehicle is too close it is more likely to collide with the turning vehicle.

[20]In support of his submission, counsel relies on observations in this court in Clift v Hawes QBENF/1998/1509/A2 and in particular observations by Peter Gibson LJ that a breach of the Highway Code by a driver of the following vehicle may well be indicative of a breach of duty of care. Having recited part of the Code in these terms:

“Drive at a speed that will allow you to stop within the distance you can see to be clear. Leave enough space between you and the vehicle in front so that you can pull up safely if it suddenly slows down or stops.”

Peter Gibson LJ observed:

“That seems to me to be elementary, practical commonsense.”

I entirely agree with this analysis which could hardly be disputed but it is important to understand the context of that case. A following motorcycle struck the rear of a Clio which had been stationary in the centre of the road for two minutes, having stopped following an accident in the carriageway in front. The judge exonerated the motorcyclist holding that it had not been shown he was riding too fast or too close to the Clio. The majority of the Court of Appeal reversed that finding and held that he had been contributorily negligent in relation to his own injuries although primary liability rested with the driver who caused the original accident in the first place. There was no collision with or loss caused to that driver by the motorcyclist and the question of any liability to that driver simply did not arise.

[21]Mr Turner points to the recent decision of this court in Sam v Atkins

[2005] EWCA Civ 1452

, [2006] RTR 14 which concerns a speeding motorist who struck a pedestrian who emerged, at the very last moment, into his path such that the driver could not have stopped to avoid her coming into contact with the wing-mirror of her car. The trial judge had found the motorist negligent but held that it was not causative of the pedestrian’s injuries. Giving the judgment of the court, May LJ said at paragraph 17:

“So, here, on the factual findings which the judge obviously made, he should not technically have held the defendant to be negligent. On his findings the defendant owed no duty to the appellant to take care to avoid the injury which in fact occurred when the appellant walked into the path of the defendant’s vehicle. Putative negligence in other circumstances which might have caused injury to another claimant did not justify a finding of negligence in breach of duty to the appellant on the facts as found by the judge in this case. That is a technical matter and identifying this error does not, itself, determine this appeal, but it does remove an uncomfortable half [contradiction] in the judge’s finding.”

May LJ went on at paragraph 24: 22. ”If, for other hypothetical circumstances, the defendant might have been held in negligent breach of duty, and thus liable for someone else’s injuries, she was under no duty to guard against the accident and injuries which in fact happened. This can be expressed explanatorily by saying that the defendant’s negligence did not cause the accident. It is technically more accurate to say that she was not in breach of duty to this claimant in the circumstances of this case. The judge was entitled so to hold and in substance did so.”

May LJ went on at paragraph 24:

[22]For my part, I would articulate the ambit of the duty of care of a driver owed in these circumstances as being sufficiently wide to cover all those who might reasonably be affected by the fact of his driving too close to the vehicle in front. That, however, does not help Mr Whittle. In this case, the presence of Mr Taylor on the road is and was legally irrelevant. His Nova did not collide with the Mondeo because he was so close that he was able to drive around it as Mr Whittle commenced what became a U-turn. Bearing in mind the rejection of the point advanced by Mr Purchas on paper, neither did its presence mean that Mr Bennett was in any way less able to cope with the confronting emergency of the U-turn. As its presence on the road does not carry this appeal any further, neither does the distance between that car and the following Nova take the appeal any further.

[23]The other argument advanced on Mr Whittle’s behalf concerns the speed of 60 mph. It is submitted that Mr Bennett should have been able to stop within the distance he could see to be clear should an emergency occur and, furthermore, that U-turns are not illegal at the point where the accident occurred. This, however, is to ignore the judge’s finding of fact that the Nova was 30 metres away from the Mondeo when Mr Bennett could first have realised that the Mondeo was moving into his path (as opposed to driving off from the nearside in circumstances that allowed the Nova to overtake). As Mr Turner pointed out in his skeleton argument, the stopping distance at 50 mph would have been in the region of 53 metres and thus the accident would not have been avoided. Whether the impact might have been less than, in fact, it transpired was not a factual situation examined before the judge.

[24]Mr Redfern counters this submission by seeking to graft back into the equation the presence of Mr Taylor’s Nova and submits that if Mr Bennett had been further back in the road, maintaining a proper distance, he would have had adequate room to stop. I agree with Mr Turner’s submission that this falls into the trap or fallacy of the coincidence of location. What is important is that when Mr Whittle commenced his U-turn, the following Nova was in fact 30 metres away. Many circumstances could have altered that coincidence of fact. He might have been delayed at traffic lights so that he was further back; Mr Whittle might have stopped entirely to check the map or make a telephone call, then the accident would have been avoided. None of these possibilities make any difference. The two cars were where they were when Mr Whittle commenced his turn, at a time when, had he been paying proper attention, he should and would never have done so. In the circumstances the argument to apportionment simply do not arise.

[25]Although I very much regret the very severe injuries which Mr Whittle has suffered, he can only recover damages if he proves that his injuries were at least in part caused by the actionable negligence of Mr Bennett. The judge came to a proper conclusion which was entirely open to him on the facts as he found them to be.

[26]I would dismiss this appeal.

SIR IGOR JUDGE: I agree. I sympathise very greatly with Mr Whittle, and indeed with those who now have the responsibility of caring for him and doing for him the things he can no longer do for himself. I also recognise that Mr Grundy, in the court below, and Mr Redfern QC before us have put up a very valiant forensic fight on behalf of Mr Whittle. But in the end I have been unable to discern any justified basis for interfering either with the judge’s findings of fact, or the conclusions he reached on the basis of the facts as he found them to be.

[28]Accordingly, I share my Lord, Lord Justice Leveson’s views about the way in which this appeal should be dealt with.

SIR ANTHONY CLARKE MR: I agree with both their Lordships.

Order

Appeal dismissed with costs.