Sharp v Ministry of Defence [2007] EWCA Civ 1223

[2007] EWCA Civ 1223Case No B3/2007/0507
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
Venue QUEEN’S BENCH DIVISION, LEEDS DISTRICT REGISTRY
MR JUSTICE KEITH
5CH50094
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27/11/2007
Before
LORD JUSTICE SEDLEYLORD JUSTICE MAURICE KAYLORD JUSTICE RIMER
Between
SHARPAppellantMINISTRY OF DEFENCERespondent
Mrs A Yip (instructed by Hilary Meredith, solicitors) for AppellantMs T Griffiths QC (instructed by Messrs Berrymans Lace Mawer) for RespondentHearing Hearing date: Friday 9 November 2007
Judgment

The issue

[1]The claimant, at that time a sapper in the Royal Engineers and a trained heavy vehicle driver, was grievously injured, and his fellow serviceman in the passenger seat killed, when a convoy in which he was driving the seventh vehicle (V7) came to an unexpected halt on the A11 autobahn, approaching Berlin, on the morning of 17 September 2002. The road and weather conditions were reasonably clement. The first vehicle (V1), a Land Rover carrying the officer in charge of the convoy, came to a steady halt alongside roadworks when signalled to do so by a construction worker. V2 had to brake a little harder than usual but also stopped safely. V3 had to brake sharply, but V4 (or so the judge found) was able to halt normally. V5 and V6 both had to carry out emergency stops, coming to rest with only half a metre between them. The claimant in turn made an emergency stop, but it was not sufficient to prevent the protruding load of V6 from penetrating his cab, killing his passenger and injuring him. V8 managed to halt safely, but V9 ran into the back of it, and a civilian car which had got between the last two vehicles may have collided with V9. V10 appears to have stopped safely.[2]Sapper Sharp sued the Ministry of Defence for negligence and breach of statutory duty. The pleaded particulars fell into three groups. The first group alleged that the convoy, whether spontaneously or through lack of training and supervision, was proceeding with inadequate spacing between the vehicles, producing a concertina effect if the leading vehicle halted. The second was that V7 had faulty brakes. The third was that V6 should not have had a protruding load. In the light of the evidence and the judge’s findings, the case has come to turn on the first of these, and it is solely with this aspect of the claim that the present appeal, for which permission was given by Toulson LJ, is accordingly concerned.[3]Sitting at Leeds on 14 February 2007, Keith J [2007] EWHC 224 (QB) found against the claimant on liability, which had been ordered to be tried first. It was common ground that Keith J had jurisdiction and that English law applied. The protruding load allegation was not pursued, and the judge found the brakes not to have been materially faulty. As to the driving of the convoy, he held, in short, that although the drivers of V5 and V6 had been negligent in driving so close to the vehicle in front that each had to make an emergency stop, the sole effective cause of V7’s collision with V6 was Sapper Sharp’s own negligence in driving too close to it.[4]This was his reasoning: 17. With the exception of V4, this shows a pattern of vehicles further down the convoy having to brake more and more sharply. That could have been because they were increasingly keeping shorter distances with the vehicle in front of them than vehicles earlier in the convoy, or that they were reacting increasingly more slowly to the braking of the vehicle in front of them. But the possibility that they were increasingly making either or both of these errors is unlikely, and the strong likelihood is, and I so find, that some of these vehicles were negligently being driven too close to the vehicle in front. That applies to V5 and V6 because their drivers admit to having had to make an emergency stop. Indeed, the experts agree with that conclusion. The joint statement of Dr Ninham and Mr Philip Collier, the expert witness on Spr Sharp's behalf and who also has wide experience in investigating road traffic accidents, said: "... given the general estimates of vehicle separation provided by the drivers and passengers, and the occurrence of the incident itself, we agree that it is likely that some of the vehicles in the convoy were travelling too close to the vehicle ahead for their speed. Indeed some of the witness evidence describes a separation distance that is closer than that given by the two second rule." 20. As it is, if (as I find) the drivers of V5 and V6 were negligent, so too, for precisely the same reasons, was Spr Sharp (subject, of course, to the argument relating to the efficiency of the brakes of his vehicle). Indeed, Spr Sharp's negligence was the more obvious. After all, the drivers of V5 and V6 were able to stop without colliding into the vehicles in front of them. The driver of V6 was even able to come to a stop despite the driver of V5 having made an emergency stop. I acknowledge that the concertina effect was going to create some bunching when one of the vehicles in the convoy came to an emergency stop, but a collision was by no means inevitable if a proper distance was being maintained. After all, V8 did not collide with Spr Sharp's vehicle. Having said that, I shall return later to whether the negligence of the drivers of V5 and V6 could be said to have caused the accident along with Spr Sharp, and if so the extent to which his negligence contributed to the accident. But first I must deal with the allegations of lack of training, briefing and supervision, and the important issue relating to the brakes.37. Since V7's defective braking system cannot be said to have caused or contributed to Spr Sharp's injuries, we must return to whether Spr Sharp's negligence could be said to have caused the accident rather than the negligence of the drivers of V5 and V6. I have concluded that the pre-eminent cause of the accident was Spr Sharp's negligence. He should have been keeping a safe distance from V6 so that he could come to a stop without colliding into the girders protruding from the rear of V6, even if V6 unexpectedly came to an abrupt halt. Neither V5 nor V6 should have been driven in such a way as to result in them coming to a sudden stop. It may be that this accident is unlikely to have happened if V6 had come to a gradual stop, and that V6 is likely to have come to a gradual stop if V5 had come to a gradual stop. But that does not mean that they must be regarded as having caused the accident along with Spr Sharp. The primary responsibility for the accident must lie with Spr Sharp since his driving should have catered for the possibility of V6 braking hard in the event of an emergency. His driving did not take that into account. This is not a case in which it is appropriate to treat the drivers of V5 and V6 as having jointly caused the accident with Spr Sharp.38. For these reasons, I have concluded that Spr Sharp must be regarded as solely responsible for the accident. This will no doubt come as a devastating blow for him, and I hope that in time he will come to terms with his misfortune. However, my conclusion means that Spr Sharp's claim must be dismissed, and judgment must be entered in favour of the Ministry of Defence. I regret the time which has elapsed between the hearing and the handing down of this judgment, but the parties wished to reduce their closing submissions into writing, and they were received shortly before I went on an extended period of leave.[5]It is also relevant that the judge rejected the claims that there had been inadequate briefing and supervision of the drivers before and during the convoy. He accepted the MoD’s evidence that the drivers had been specifically briefed about, among other things, maintaining a two-second interval or a 50-80m distance from the vehicle in front.

The appellant’s case

[6]In a concise and cogent skeleton argument, Amanda Yip, for Sapper Sharp, contends that the judge’s findings do not support his conclusion. They mean, she contends, that liability has to be shared between the MoD as the employer of the negligent drivers of V6 and V5 and Sapper Sharp as the partial author of his own misfortune.[7]Keith J, explaining his refusal to grant permission to appeal, wrote:
“The reasons which the court gave for that finding are sufficiently clear. The drivers of V5 and V6 were able to stop, albeit abruptly. Although they should not have been driven in such a way as to make it necessary for them to come to an abrupt halt, their driving had nevertheless catered for the possibility of being able to stop without a collision – even if the vehicle in front came to a stop abruptly. By contrast Spr Sharp’s driving had not catered for that possibility.”
[8]In other words – and this emerges equally well, I think, from the judgment itself – while it may be negligent to drive so close to the vehicle in front that an emergency stop will be required if that vehicle halts suddenly, provided the emergency stop avoids a collision there will be no damage and therefore no actionable negligence. That was the situation with V5 and V6: they managed to stop in time. What, in the judge’s estimation, happened to V7 was that it was so close to V6 that Sapper Sharp’s emergency stop could not prevent a collision. By speaking of the claimant’s “primary responsibility” the judge must have meant that the drivers of V5 and V6, while negligent, had not contributed to the occurrence of the collision.[9]Ms Yip contends that this is not a legally tenable conclusion. It cannot realistically be said, she submits in her written argument, that this accident would have occurred even if V5 and V6 had not stopped abruptly. This is true, but it is not the legal test of causation. The same, for example, could be said about the road worker who halted the convoy. It is a ‘but for’ test.[10]But Ms Yip goes on to submit that the negligent driving of the two preceding vehicles had a directly causative role in the claimant’s collision. The expert evidence and the judge’s own findings both confirm, what experience also indicates, that there is a concertina effect in convoys when the lead vehicle slows or halts. This is because each succeeding driver takes a second or two to react, with the consequence that the risk of a collision grows as the effect travels backwards.[11]The way it was put by the MoD’s expert, whose evidence the judge clearly accepted, was this: 13. This was pithily expressed by the Ministry's expert witness, Dr Andrew Ninham, who has considerable experience in investigating road traffic accidents. At para. 3.2.6 of his report, he wrote:
"It is inevitable that the separation of vehicles will reduce once braking commences. This will occur simply because, in a line of vehicles, any given driver will usually begin to brake only after the vehicle in front has begun to brake, rather than at the same time; thus inevitably there is a lag in successive drivers braking. If separation distances are appropriate the effect has no serious outcome. If following distances are inadequate each driver has to brake slightly harder than the driver of the vehicle in front and, sooner or later, a vehicle somewhere along the line will collide with the vehicle in front."
The Highway Code §105 advises accordingly that you should never get closer to the vehicle in front than the overall stopping distance, and that large vehicles need a greater distance to stop.[12]The judge held that the duty of care of a driver in convoy was owed not only to the vehicle in front but to the vehicle behind: 15. Of course, the need to keep a safe distance from the vehicle in front is to prevent a collision with the vehicle in front even if it comes to an abrupt and unexpected stop. But it is not only the vehicle in front which a driver must have in mind. Drivers should also remember that there may well be vehicles behind them. The more abrupt a halt, the less time will the vehicle behind have to stop. Drivers should therefore keep a sufficient distance from the vehicle in front to avoid having to make too abrupt a halt even if the vehicle in front does so as not to make it necessary for the vehicle behind to come to an even more abrupt halt. That applies especially to convoys of large vehicles, in which(a) it may be less easy for drivers to see the vehicles in front of the one immediately in front of them,(b) the vehicles will take longer to stop because of their size, and(c) bunching of vehicles is likely to occur when the lead vehicle slows down.[13]It follows, in Ms Yip’s submission, that every driver – especially in a formal convoy - who drives too close to the vehicle in front incurs a foreseeable risk not only of having to make an emergency stop but of compelling the driver behind to make one too, with the concomitant risk of a collision both to the front and to the rear. Both risks materialised here, and both drivers were accordingly to blame for any consequent injury.

The respondent’s case

[14]On the merits of this argument, Tania Griffiths QC for the MoD submits that there was no basis at all for criticising the driver of V5. She questions the judge’s findings that V4 had halted normally, in light of conflicting evidence in the statements to the Board of Inquiry. This, however, is not of critical importance. What matters is whether the bare fact of an emergency stop shows V5 and in turn V6 to have been driven negligently.[15]For the rest, Ms Griffiths submits that it lay within the generous scope of the judge’s discretion to find that such negligence as there may have been on the part of the drivers of V5 and V6 did not cause the accident. For my part I do not accept that discretion – typically the making of a choice between two or more legally permissible courses - plays any part in fact-finding. Fact-finding is a matter of judgment, and one which, when it concerns negligence, is heavily laden with law. There is nothing in principle to immunise such findings against appeal.[16]In her written submissions Ms Griffiths reiterated her submission to Keith J that fault on the part of the driver of V6 had not been pleaded or canvassed. The nature of the claim about the convoy was that it was badly organised by the captain in charge. It was only when written submissions were put in that other drivers were blamed.[17]The judge was alive to this problem. He dealt with it in this way:18. Miss Tania Griffiths QC for the Ministry pointed out that Spr Sharp's advisers did not seek "to apportion individual blame" on the part of the drivers of the vehicles in front of Spr Sharp's vehicle for not keeping a safe distance between them and the vehicles in front of them, and for having therefore to brake more sharply than would otherwise have been necessary. Accordingly, it was said that if the court was to find that some of the individual drivers may have been too close to the vehicle in front, that could not help Spr Sharp, "because that would not be because the convoy was ill-disciplined or disorganised as a whole but simply because individual drivers failed to maintain discipline". I do not agree that it is not open to Spr Sharp to allege that some of the drivers of the vehicles in front of him were negligent. His case was opened on the basis that the inadequate spacing between the vehicles was due to a lack of proper training about driving while on convoy or to the absence of a proper briefing of the drivers prior to the departure of the convoy or to a lack of proper supervision of the convoy during the journey (all of which was encompassed by the allegation in para. 8(iii) of the Particulars of Claim that the Ministry had been negligent in "failing to properly instruct, train and/or supervise the claimant and the other drivers in the convoy to ensure that they were aware of and maintained sufficient distance between their vehicles to allow them to stop in time, having regard to the road conditions"). But Spr Sharp's case was also opened on the basis that the inadequate spacing between vehicles could have been due simply to driver error. The Ministry was said to be vicariously liable either way. The allegation that some of the drivers of vehicles in front of Spr Sharp's were negligently driving too close to the vehicle in front of them could be said to have been pleaded in the assertion in para. 8(i) of the Particulars of Claim that the Ministry's "servants" (in this context, the drivers of the vehicles in front of Spr Sharp's) "cause[d their] vehicles to travel in convoy with inadequate spacing between them".19. Miss Griffiths also pointed out that it was never part of Spr Sharp's case that the accident occurred because of inadequate spacing of the vehicles in front of him. In correspondence, his solicitors had said that Spr Sharp had been about 100-150 metres behind V6 before it began to brake, though he had reduced that to about 50 metres by the time he made his witness statement, because by then he had paced out the distance he had been from V6, and 50 metres or so was what it had come to. Indeed, his case - leaving aside for the moment the way his case was being put on his behalf by his advisers - was that the distance between him and V6 was in accordance with the two second rule, which he regarded as the rule governing the distance he should keep from the vehicle in front of him, and that the reason why his vehicle had collided with V6 was because the brakes of his vehicle had failed. However, none of this meant that an alternative case could not be advanced on his behalf if the evidence warranted it.[18]Before this court Ms Griffiths has not pressed the point. Her essential case has been that, insofar as the judge appears to have considered the drivers of V6 and V5 to blame, he was not justified in doing so.

Discussion

[19]The expert evidence, while admirably non-partisan, was not wholly consistent. On the one hand, as has been seen, the experts gave joint evidence which, by itself, supported the judge’s finding that both V6 and V7 were being negligently driven because each was too close to the vehicle in front. On the other hand there was their uncontested evidence that all convoys have a tendency, when halting, to concertina. The critical question is whether the judge was entitled to find that it was poor driving rather than, or in addition to, an inevitable bunching effect which caused V5 and V6 to make emergency stops. If he was entitled so to find, then I accept Ms Yip’s argument that the suddenness of their deceleration must have played a causative role in the claimant’s collision with V6.[20]The nearest the evidence seems to have come to reconciling the two canvassed causes of the claimant’s collision is in the report of the MoD’s expert Dr Ninham. At §3.2.8 he wrote:
“Overall, it would seem very likely that at least some of the drivers in the convoy were leaving an inadequate gap between their vehicle and the one in front, i.e. less than 70 metres and probably less than the 2 second distance. The vehicles behind Mr Sharp would have faced extra difficulty because his vehicle, instead of continuing to move away from them, albeit whilst slowing, would have undergone a very substantial deceleration in the accident.”
[21]In other words, the fact that V8, in a situation of accumulating emergency stops, was able to avoid running into the back of V7 demonstrated that its driver had been maintaining a safe distance; and by parity of reasoning, the driver of V9, which ran into V8, had been negligent in failing to do so. But how, in this light, should the judge have characterised the driving of V6, which had to make an emergency stop but did so successfully in the sense that it avoided colliding with the vehicle in front of it?[22]In my judgment Ms Griffiths is right in her submission that more is required than was established here if a driver who for good reason makes an emergency stop is to be held to blame for a following driver’s colliding with the rear of his vehicle. The duty of care which is owed to the driver behind is one element in the larger duty a driver owes to all other road users. It is well recognised that in, for example, avoiding a child who has run into the road, a driver may have to take emergency action which puts other drivers at risk of a collision. If they are driving with sufficient care, the other drivers may but will not necessarily avoid a consequent accident; but the occurrence of such an accident does not by itself make the first driver liable to them.[23]So here, in the light of the concertina effect in convoys, the emergency stops executed by V5 and V6 were as consistent with careful as with negligent driving. I would accordingly, as sought by the respondent’s notice, uphold the judge’s conclusion, not on the ground given by the judge at §37 (which, with great respect, seems self-contradictory) but on the ground that there was no sufficient basis for finding any of the drivers ahead of the claimant negligent.[24]I would add that it is apparent, on the known facts, that all the drivers in the convoy, at least as far back as V8, were caught up in the concertina effect when the lead vehicle unexpectedly halted. There was no suggestion that the intervals between the vehicles ought routinely to have been increased towards the rear to allow for this effect, since to have done so would have brought obvious further difficulties on a public highway. Although the decision of this court will come as a major disappointment to the claimant, it means that we are not concerned with what blame, if any, attaches to him for his passenger’s death or his own severe injuries. The sole outcome of this appeal is that the collision was not shown to be anybody else’s fault.[25]For the reasons I have given I would dismiss this appeal.[26]I agree.[27]I also agree.