Sharp v Ministry of Defence [2007] EWHC 224 (QB)

Neutral Citation Number: [2007] E W HC 224 (Q B)

Cas eN o:5CH5Q094

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue LEEDS DISTRICT REGISTRY, Royal Courts of Justice

Date 14 February 2007

Strand. London. WC2A 2LL

Before

MR JUSTICE KEITH

Between

Samuel Lee SharpClaimant

Ministry of DefenceDefendant

Miss Amanda Yip (instructed by Hilary Meredith) for Claimant

Miss Tania Griffiths QC (instructed by Berry m ans Lace Mawer) for Defendant

Hearing Hearing dates: 6, 7 and 8 November 2006

Judgment

Introduction

[1]On 17 September 2002 a convoy of military vehicles was being driven along the Al 1 autobahn in Germany. One of the vehicles was being driven by the claimant, Sapper Samuel Sharp. It collided with the load protruding from the rear of the vehicle in front of it. The passenger in Spr Sharp's vehicle was killed, and Spr Sharp himself suffered serious injuries. Spr Sharp holds the Ministry of Defence responsible for what happened, and in this action he claims damages from them. The court ordered that the Ministry's liability should be determined before the amount of the damages was assessed, and this is the court's judgment on that issue. All references to ranks in this judgment are references to the ranks held at the time of the accident.

The basic facts

[2]Spr Sharp was 18 years old at the time of the accident. He had joined the army in February 2001 and was in the Royal Engineers. He had wanted to be a driver, and in the course of his short period of service he had been trained to drive large goods vehicles with trailers, including the carriage of hazardous loads. The training would have included driving 8 tonne trucks. He was posted to Germany in January 2002, and was trained to drive on the right hand side of the road, though the amount of driving he did in Germany was limited.

[3]At the beginning of September 2002, a regimental training exercise took place in Poland. Spr Sharp went on the exercise, driving a 4 tonne truck both on the way to the exercise and during it. However, while on the exercise one of the other drivers fell ill, and Spr Sharp was ordered to drive his vehicle back to Germany when the exercise was over. It was a left hand drive 8 tonne Bedford truck. There was subsequently found to be a problem with the slack adjusters on the vehicle's right rear wheel, which affected to a modest degree the vehicle's braking efficiency. One of the main issues in the case is what the extent of its reduced efficiency was, and whether the accident would still have occurred if the braking system had been working perfectly.

[4]The convoy with Spr Sharp driving the 8 tonne Bedford truck left its departure point in Poland shortly before 9.30 pm on 16 September. The convoy arrived at its overnight stopping point at about 1.00 am the following morning. The men set up camp overnight. The part of the convoy which included Spr Sharp's vehicle left shortly after 10.00 am that morning. There were ten vehicles in the convoy. Spr Sharp's vehicle was seventh in line. He had a passenger next to him in the cab. That was Spr Dean Wilson. There was conflicting evidence about the state of the weather, but the weight of the evidence - and this is what I find - is that it was overcast but not raining. Visibility was good. The road was damp with overnight dew, and although it was at one time suggested that the road surface at the site of the accident which had been newly laid was slippery, that allegation was not maintained, and it was common ground that the road surface did not play any part in the accident.

[5]Within ten minutes or so of leaving its overnight stopping point, the convoy reached the Al 1 autobahn and headed towards Berlin. After the convoy had been travelling on the autobahn for about 10 minutes, it approached some road works. The right hand lane next to the verge was closed, and the vehicles which had been travelling in that lane had to move into the left hand lane next to the central reservation. The speed limit within the road works was 60 kph. The convoy had been travelling in the right hand lane, and on approaching the road works it moved into the left hand lane. The vehicle at the front of the convoy - a land rover in which the officer in command of the convoy was being driven - slowed down slightly as it entered the road works.

[6]As the convoy was proceeding through the road works, a construction worker stepped into the left hand lane ahead of the convoy and signalled for the convoy to stop. The land rover at the front of the convoy (VI) had no difficulty in stopping. The same applied to the vehicle at the back of the convoy (V10). But in between the vehicles had various amounts of difficulty in stopping. Some had very little difficulty. Others had to execute an emergency stop. For example, the vehicle in front of Spr Sharp's vehicle (V6) only just managed to avoid colliding into the back of the vehicle in front of it (V5). However, although some of the vehicles in front of Spr Sharp's vehicle pulled up sharply, there was no collision until Spr Sharp's vehicle (V7) collided with the load protruding from the rear of the vehicle in front of it (V6). The impact caused V6 then to shunt into the vehicle in front of it (V5). The vehicle behind V7 (V8) managed to come to a halt without colliding into V7, though the vehicle behind V8 (V9) collided with V8, and a civilian car between V9 and VI0 is thought to have collided with V9.

[7]V6 was a 14 tonne Bedford truck. It was carrying steel girders which protruded from the back of it. When V7 collided with V6, the girders crushed V7's cab. At one stage, it was being suggested that the risks presented by the girders protruding from the back of V6 should have been reduced in various ways, but this allegation is no longer pursued. The consequence of the crushing of V7's cab was that Spr Wilson was killed, and Spr Sharp received severe leg and abdominal injuries. The army held a Board of Inquiry into Spr Wilson's death. The Board blamed Spr Sharp for the accident. Its view was that the accident could have been avoided if V7 had been travelling at a slower speed, if it had kept a greater distance between it and V6, and if Spr Sharp had reacted more quickly to the slowing down of V6. However, the Board's view is not binding on me, and I have paid no attention to its conclusions, bearing in mind that Spr Sharp was not invited to attend the Board's hearings or to make any representations of his own.

[8]No other proceedings, whether civil or criminal, have been brought in respect of the accident. For example, no claim has been brought on behalf of Spr Wilson's estate or any dependants, and such a claim would now be out of time.

Spr Sharp's case

[9]The case advanced on Spr Sharp's behalf makes two allegations of negligence and breach of statutory duty. The first is that the vehicles in the convoy were travelling too close to each other. That resulted-in the vehicles bunching together like a concertina when VI had come to a halt. The consequence was that Spr Sharp's braking distance was reduced.

[10]The second allegation of negligence and breach of statutory duty relates to the condition of V7's brakes. The vehicle's braking efficiency was reduced as a result of a problem with the slack adjusters, and the Ministry concedes that the vehicle's braking efficiency was at the very least reduced to a level at which it would have failed the appropriate safety test. In those circumstances, the Ministry admits that it was in breach of the relevant regulations in respect of the reduced efficiency of the braking system, but it contends that its breach of statutory duty was not the cause of the accident, since V7's cab would still have been crushed causing Spr Sharp's injuries even if the braking system had been working normally. ' The reason why Spr Sharp did not stop in time, so it is said, is either because he had been driving too close to V6, or because he had been driving too fast, or because he did not react quickly enough when V6 began to slow down, or a combination of all these things.

[11]Both parties agree that the English courts have jurisdiction over this claim and that the governing law is English law. The former is unarguably correct in view of the domicile of the Ministry, but the latter was potentially contentious. It would have depended on whether, in the particular circumstances of the case, the general rule in section 11(1) of the Private International Law (Miscellaneous Provisions) Act 1995 that the applicable law is the law of the country in which the events constituting the tort occurred had been disapplied by section 12. However, the parties agreed that English law should be the governing law, and in these circumstances no evidence as to what the relevant German law is has been assembled. Since foreign law is deemed to be the same as English law in the absence of evidence to the contrary, English law is to be treated as the governing law for Spr Sharp's claim.

The allegation ofinadequate spacing

[12]When vehicles are travelling in a convoy, each of the vehicles should keep a safe distance from the vehicle in front so that they can all come to a halt safely if the vehicle at the front slows down and stops. However, drivers do not brake immediately when the vehicle in front of them slows down. It takes time for them to react. If they are all travelling at a safe distance from each other, they will all be able to stop in good time to avoid a collision. But if any of them is travelling too close to the vehicle in front, they will have to brake more sharply than would otherwise be the case if they are to avoid a collision. And if the vehicle immediately behind them is travelling too close to the vehicle in front of it, that vehicle will have to brake even more sharply if it is to avoid colliding with the vehicle in front. Eventually, if too many vehicles in a convoy are not keeping a safe distance from the vehicles in front of them, they will bunch together like a concertina, and a collision could eventually occur.

[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."

[14]The need to keep a safe distance from the vehicle in front is enshrined in para. 105 ofthe Highway Code, which reads:

"Drive at a speed that will allow you to stop well within the distance you can see to be clear. You should • leave enough space between you and the vehicle in front so that you can pull up safely if it suddenly slows down or stops. The safe rule is never to get closer than the overall stopping distance ... • allow at least a two-second gap between you and the vehicle in front on roads carrying fast traffic ... • remember, large vehicles and motorcycles need a greater distance to stop."

The need to stay at least two seconds of travel from the vehicle in front is a rule of thumb known as "the two second rule".

[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

[16]Against this background, I turn to the evidence relating to the convoy at the time of the accident. The lead vehicle in the convoy (VI) was being driven by Staff Sergeant David Gray. His passenger was Captain Simon Smith, who was in charge of the convoy. They say that their vehicle came to a "gentle" stop when the construction worker signalled for them to stop, and that it was "a normal smooth manoeuvre". The driver of V2 said that he braked "slightly harder than normal, but not hard enough to cause [V2] to skid", and his passenger described them as going from a "gradual slow" to a "sharp stop". Although the passenger in V3 said that they slowed "gradually", the driver of V3 said that he had to brake sharply, but that it was not an emergency stop. The driver of V4 said that he did not have to brake sharply, but the drivers of V5 and V6 both said that they had to carry out an emergency stop, the driver of V6 saying that his vehicle stopped only half a metre or so behind V5.

[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."

[18]Miss Tarda 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 twj> 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.

[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.

The allegation oflack of training, briefins and supervision

[21]The allegation that there was insufficient training on convoy driving, insufficient briefing on what was required of this convoy and inadequate supervision of the convoy during the journey are part of the allegation of inadequate spacing. It is said that it was the lack of such training, briefing and supervision which resulted in V5 being too close to V4, V6 being too close to V5 and V7 being too close to V6. It is necessary to consider each of these allegations in turn.

[22]Training. Spr Sharp's initial training included training on convoy driving. He has very little recollection now of what he was told in training about convoy driving, but he recalls the two second rule being emphasised by the aphorism "only a fool breaks the two second rule". The case advanced on his behalf is that if that was all he was taught about the distance which should be kept from the vehicle in front when on convoy, that was wholly inadequate. The expert witnesses agreed that "...a vehicle separation throughout the convoy of a distance equivalent to two seconds of travel will be insufficient in some circumstances. The 'two second rule' gives an adequate separation only if all drivers respond (by braking) to the brake lights of the vehicle ahead within two seconds and/or their average deceleration is the same or greater than that of the vehicle ahead." "We agree that a driver faced with the illuminated brake lights of the vehicle ahead would probably reduce the speed of his vehicle initially by lifting his foot from the accelerator and applying the vehicle's brakes gently. There will be a lag in braking harder should the vehicle ahead be braking hard, because the following driver will not appreciate immediately the severity of braking of the vehicle ahead. Thus under these circumstances the maximum deceleration of the following vehicle will need to he higher than the maximum deceleration of the vehicle ahead. Once maximum braking is being undertaken by a vehicle somewhere along the line of vehicles, no higher deceleration is possible by the following vehicles and only be emergency braking almost immediately, without any period of gentle braking, will a collision be avoided. We note that the driver of V6 described executing an emergency stop, although we do not know how much of the braking that he undertook was at an emergency level. We agree that this is the type of situation outlined ... above."

[23]A member of the staff at the Defence School of Driver Training provided a witness statement about the training drivers receive. He was not called to give evidence, perhaps because it was being contended on behalf of the Ministry that an allegation that Spr Sharp's initial training had been adequate had never been pleaded, and that even if it had the case had been opened on the basis that Spr Sharp was prepared to accept the witness's evidence. As it turned out, his evidence was not agreed, and I have therefore paid no attention to it. But leaving that aside, the court was provided with the instructors' training materials. They showed that trainees are instructed, among other things, on the speed vehicles in a convoy should travel and the distances to be maintained between them. They do not refer to the two second rule. Instead, trainees are told the minimum distances to keep between vehicles in a convoy on motorways, normal roads and built-up areas. On motorways, the minimum distance should be 100 metres, whether during the day or at night. 100 metres represents twice the distance provided for by the two second rule at 80 kph (which is the equivalent of 50 mph). So if the training materials reflect what trainees are told - and there is no reason at all why they should not be treated as doing that - trainees were instructed to keep distances well beyond the two second rule. In these circumstances, Spr Sharp's training dealt sufficiently with the need to keep a safe distance from the vehicle in front when driving in convoy, and they were not told merely to obey the two second rule. The allegation that the Ministry was in breach of reg. 9 of the Provision and Use of Equipment Regulations 1998 in that it had failed to ensure that Spr Sharp had received adequate training in connection with his driving of V7 has not been made out.

[24]Briefing. The convoy was briefed by Capt Smith, and SSgt Gray before it left Poland. There were slight differences in the evidence about what precisely was said, but looking at the evidence of Spr Sharp, Capt Smith and SSgt Gray overall - as well as what others said in their statements for the Board of Inquiry - I find that the material parts of the briefing included the following. SSgt Gray told the drivers to keep the vehicle immediately behind them in sight in their rear view mirror, and to slow down if it could not be seen. In that way the convoy would remain together. Capt Smith dealt with the speed which they would be going at and the distance they had to keep from the vehicle in front. They would be averaging 50 kph on autobahns, faster at times, slower at others, but maintaining that average speed. The distance they had to keep from the vehicle in front would depend on their speed at the time - the greater the speed, the greater the distance - but there are two things which the drivers, I find, were told about the distance they had to keep. First, Capt Smith referred to the two - second rule. SSgt Gray specifically recalls Capt Smith mentioning it, and Capt Smith was "pretty sure" that he did. Secondly, Capt Smith said that the distance they should keep would vary from 50 metres to 80 metres. Although neither Capt Smith nor SSgt Gray referred to that in their statements for the Board of Inquiry, SSgt Gray said that in his witness statement, and since the briefing was intended to help both experienced and inexperienced drivers in the convoy, a broad range of distances was exactly what one would expect the drivers to have been told. In the circumstances, I do not regard the allegation that the convoy was insufficiently briefed in the distances which had to be maintained from the vehicle in front as having been established.

[25]Supervision.One of the allegations made on behalf of Spr Sharp in the course of the trial, but not in the closing submissions, is that during the journey back to Germany, Capt Smith could not have been checking to see whether the vehicles in the convoy were keeping a safe distance from the vehicle in front. If he had been, he would have seen that some were being driven too closely to the vehicle in front. I accept that one of the things which Capt Smith had to do was to keep an eye on the distances between vehicles, but he could not have been expected to do that all the time. Capt Smith says that he would "routinely" look back to see what the spacing between the vehicles was, and I have no reason to suppose that he did not do that from time to time. But the accident happened after the convoy had slowed down a little on entering the road works, and the probability is - and I find - that that was when the spacing between some of the vehicles became inadequate for the speed of the convoy at that time. There was no evidence about how far the convoy had gone since entering the road works before VI slowed down at the request of the construction worker, and it is simply not possible to criticise Capt Smith for not checking the spacing at that stage when the convoy may only have been in the road works for a relatively short time. Assuming that the allegation of inadequate supervision is still being pursued, it has, like that of inadequate training and inadequate briefing, not been made out.

The condition ofthe brakes

[26]The Board of Inquiry thought that V7 had failed an inspection the previous March, and it did not know whether it had been subsequently repaired and inspected again. But it had not had V7's full service records. They show that although V7 had failed a routine inspection in March 2002, no problem with the braking system had been identified. Repairs were carried out in May, and when it was inspected again on 15 May its brakes were found to be working efficiently. It was serviced on 8 July, and an inspection on 17 July showed that the brakes were working satisfactorily. By the time of the accident, V7 was not due for its next inspection and service.

[27]V7 was examined by DEKRA Automobil GmbH ("DEKRA") on the day after the accident. The braking power for the rear right wheel was 4kN compared to 17kN for the rear left wheel. This was attributable to a fault in theadjustment of the slack ■ adjusters for the right rear wheel. That difference was far greater than the permitted difference of 30%, and it resulted in what DEKRA's report described as a "braking ratio" of 73%. That meant, so the report concluded, that "despite the inadmissibly high brake power difference at the rear axle, the vehicle still has a very good braking ratio in relation to the permissible total laden weight". Despite this "very good" braking ratio, the expert witnesses agreed that V7's braking efficiency was reduced. In the circumstances, the Ministry accepts that, in breach of reg. 5(1) of the Provision and Use of Equipment Regulations 1998, it failed to ensure that V7's braking system had been maintained in an efficient state, in efficient working order and in good repair. That starkly raises the issue of causation: would SprSharp's cab have been crushed causing his injuries even if V7*s braking system had been operating to its optimum efficiency?

[28]I should make two points at this stage. First, Spr Sharp's evidence was that when he saw the vehicle in front braking, he tried to brake but nothing happened. He tried to pump the brakes and gear down, but the brakes would still not react. I do not doubt that that is what Spr Sharp now recalls, but I do not think that his recollection can be correct. As with all pneumatic braking systems, there would have been only a momentary delay after the brake pedal had been depressed before the brakes began to work. The fault with the slack adjusters for the right rear wheel would simply have reduced the efficiency of the braking system, rather than rendering it completely ineffective. I do not doubt that Spr Sharp noticed a difference in the braking system when he applied the brakes just before the collision, and the reason why he.would have noticed that difference for the first time then, despite having driven the vehicle for a number of hours when the previous evening's driving is taken into account, was because the reduced efficiency would not have been apparent when the brakes were only gradually applied. It would only have become noticeable on sharp braking.

[29]Secondly, Dr Ninham put the reduced efficiency ofV7's braking system at 85% of its optimum. That meant that V7 would have slowed down at 85% of the rate at which it would have slowed down when the brake pedal was firmly depressed if the brakes had been working to their optimum efficiency. Mr Collier did not disagree with that. If an allowance is made for the fact that a difference of 30% in the braking power between the right and left rear wheels was acceptable, that would have a modest impact on the overall reduction in efficiency. According to Dr Ninham, the reduced efficiency of V7's braking system would be at 85.5% of its optimum if such an allowance was made. Miss Amanda Yip for Spr Sharp questioned whether such an allowance should be made on the basis that V7's reduced efficiency was to be contrasted with its optimum efficiency, rather than such efficiency as would be acceptable. I think that is right, but it makes little difference to the result because the difference of 0.5% in efficiency is really very small.

[30]Against that background, I return to the critical question which is whether V7'scab would still have been crushed causing Spr Sharp's injuries if the braking system of his vehicle had been working properly. That depends on a number of factors - in particular, the speed at which the convoy was travelling as it went through the road works before it was signalled to stop, the distance V7 was from the vehicle in front of it, the speed with which Spr Sharp reacted to the brake lights of V6 going on, the extent to which he tried to decelerate when he was aware that V6 was slowing down, and the speed his vehicle was going when it collided with the girders being carried by V6. The difficulty is that it is not possible to give definitive estimates of any of these factors. The only thing which can definitively be said is that the higher the speed that V7 was travelling when emergency braking began ("the initial speed"), and the lower its speed when the impact occurred ("the impact speed"), the greater the influence which the reduced efficiency of the brakes would have had.

[31]In an attempt to bring a measure of scientific discipline to the exercise, Dr Ninham produced a table which set out to calculate the difference in the impact speed which could fairly be said to be attributable to the reduced efficiency of the braking system. The table produced a variety of different speeds attributable to the problem with the brakes depending on the various possibilities as to what the initial speed and the impact speed actually were. It was agreed that an impact speed of about 10-15 mph would have been sufficient to crush V7's cab. Accordingly, taking in Spr Sharp's favour the lower end of that range, if the difference in the impact speed which could fairly be attributable to the defective braking system was 10 mph or more, the reduced efficiency of the braking system could be said to have caused or contributed to his injuries.

[32]The table produced by Dr Ninham was in three sections. Each section contained a different figure for the deceleration rate of V7 depending on what the coefficient of road friction was. He calculated the deceleration rate on the supposition that the coefficient of road friction was 0.3, 0.4 and 0.5. The result of these calculations was that the only circumstances in which the difference in impact speed which could fairly be attributable to the defective braking system was 10 mph or more were if the initial speed was 60 kph and the impact speed 15 mph - and even then only if the deceleration rate was based on a coefficient of road friction of 0.4 or 0.5. At a coefficient of road friction of 0.4, the difference in impact speed which could fairly be said to be attributable to the defective braking system was 11.0 mph, and at a coefficient of road friction of 0.5, the difference in impact speed attributable to the defective braking system was 10.6 mph. Thus, if the initial speed was less than 60 kph or the impact speed more than 15 mph, the reduced efficiency of the braking system could not have contributed to Spr Sharp's injuries. Mr Collier did not disagree with this approach. The critical issue, therefore, is whether V7's initial speed was less than 60 kph and whether its impact speed was more than 15 mph.

[33]I deal first with the initial speed. The initial speed has to have been 60 kph if the reduced efficiency of the braking system could have contributed to the accident, because even 1-2 kph less would have resulted in the difference of impact speed attributable to the braking system being less than 10 mph. There is no analytical means of calculating the initial speed of V7. All one can go on is the evidence of Spr Sharp and the other members of the convoy, but one can proceed, I think, on the assumption that the vehicles in the convoy were travelling at roughly the same speed as they went through the road works before VI began to slow down in response to the signal to stop. But there are three problems with the evidence of Spr Sharp and the other members of the convoy. First, estimating one's speed is highly subjective and recognised to be prone to error. Secondly, in some cases the estimate of the speed of the convoy was its speed as it was about to enter the road works rather than its speed as it went through the road works having slowed down because of them. Thirdly, the relevant speed for present purposes is not either of these speeds, but the speed of V7 when emergency braking began. After all, V7 is likely to have slowed down a little before Spr Sharp realised that V6 was not just braking, but braking very sharply. So even if the cadence braking which Spr Sharp described is to be regarded as part of his emergency braking, there is likely to have been some non-emergency braking on his part before then.

[34]Ignoring the estimates of the speed of the convoy as it was about to enter the road works, and concentrating on the estimates of its speed as it went through the road works, one estimate was 80 kph (the passenger in V3), but that was so different from all the other estimates that it can safely be discounted. SSgt Gray put the speed at 55-60 kph, Capt Smith and the driver of V6 put it at 50-60 kph, the passenger in V9 put it at 52-53 kph, the driver ofV8 put it at 50 kph, the drivers of V9 and V10 put it at 40 kph, and the driver of V5 put it at 30-40 kph. Spr Sharp himself was unable to recall the speed. In the final analysis, it is difficult to be precise, but in all probability the speed of the convoy as it was going through the road works before VI was signalled to stop was in the region of 50-55 kph. The initial speed of V7, i.e. the speed when emergency braking began, is likely to have been slightly less than that - probably in the range of 45-50 kph.

[35]I turn to the impact speed. As with the initial speed, the impact speed has to have been 15mph if the reduced efficiency of the braking system could have contributed to the accident, because even 1-2 mph more would have resulted in a difference of impact speed attributable to the braking system being less than 10 mph. Again, there is no analytical method of calculating the impact speed of V7. All one can go on is the damage to V6 and V7, their weight, and the positions they ended up in. The latter is significant. It will be recalled that V6 came to a stop before being hit by V7, but the impact caused V6 to shunt into V5 which was about half a metre in front of it. Moreover, the damage to V7 was not square across the cab, but at an angle. These considerations resulted in Mr Collier putting V7's impact speed at about 15 mph, whereas Dr Ninham put it at about 20-25 mph. I think that it must have been a little more than Mr Collier's estimate, because(a) the speed change of V7 as a result of the impact was likely to have been more than was consistent with an impact speed of 15 mph, and

(b) the forward movement of the bridge sections of V6 and the damage to its headboard suggested an impact speed of more than 15 mph.

[36]But the critical point is that even if the impact speed was 15 mph, the initial speed of 45-50 kph resulted in Dr Ninham's table producing figures for the difference in impact speed fairly attributable to the reduced efficiency of the braking system at far less than 10 mph. They ranged from 3.7 to 5.4 mph as follows: Coefficient of road friction Initial speed (in kph) Impact speed (in mph) Difference in impact speed caused by brake defect (in mph) 0.4 45 15 3.8 0.4 50 15 5.4 0.5 45 15 3.7 0.5 50 15 5.3 In these circumstances, I find that V7's cab would have been crushed causing Spr Sharp's injuries even if the braking system of V7 had been working properly, and the reduced efficiency of V7's braking system cannot be said to have caused or contributed to his injuries. The cause ofthe accident

[37]Since V7's defective braking system cannot be said to have caused or contributed toSpr Sharp's injuries, we must return to whether Spr Sharp's negligence could be saidto have caused the accident rather than the negligence of the drivers of V5 and V6. Ihave concluded that the pre-eminent cause of the accident was Spr Sharp'snegligence. He should have been keeping a safe distance from V6 so that he couldcome to a stop without colliding into the girders protruding from the rear of V6, evenif V6 unexpectedly came to an abrupt halt. Neither V5 nor V6 should have beendriven in such a way as to result in them coming to a sudden stop. It may be that thisaccident is unlikely to have happened if V6 had come to a gradual stop, and that V6 islikely to have come to a gradual stop if V5 had come to a gradual stop. But that doesnot mean that they must be regarded as having caused the accident along with SprSharp. The primary responsibility for the accident must lie with Spr Sharp since hisdriving should have catered for the possibility of V6 braking hard in the event of anemergency. His driving did not take that into account. This is not a case in which itis appropriate to treat the drivers of V5 and V6 as having jointly caused the accidentwith Spr Sharp.

Conclusion

[38]For these reasons, I have concluded that Spr Sharp must be regarded as solelyresponsible 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.

[39]As I told the parties at the conclusion of the hearing, I do not want to put them to the expense of having to attend court when the judgment is handed down, and I leave it to them to see if they can agree costs. But if the parties cannot agree an appropriate order for costs within 14 days of the handing down of this judgment, they should refer the issue to me, and I will decide the appropriate order to make without a hearing on the basis of any representations which are made. If Spr Sharp wishes to apply for permission to appeal, his solicitors should notify my clerk of that within 14 days of the handing down of tnis judgment, and I will consider that question as well without a hearing. However, any appellant's notice will still have to be filed within 21 days of the handing down of this judgment.