Whittle v Bennett
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL,John Whittle,Lord Justice Dyson,LORD JUSTICE DYSON,LORD JUSTICE LEVESON,SIR IGOR JUDGE,Lord Justice Leveson,SIR ANTHONY CLARKE |
| Judgment Date | 01 November 2006 |
| Neutral Citation | [2006] EWCA Civ 1538,[2006] EWCA Civ 930 |
| Docket Number | B3/2006/0450, B3/2006/0450(A),B3/2006/0450 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 November 2006 |
[2006] EWCA Civ 1538
Sir Anthony Clarke
(The Master of The Rolls)
Sir Igor Judge
(The President of The Queen's Bench Division)
Lord Justice Leveson
B3/2006/0450, B3/2006/0450(A)
MR M REDFERN QC & MR P GRUNDY (instructed by Messrs George Ide, Phillips) appeared on behalf of the Appellant.
MR M TURNER QC & MR J BATE-WILLIAMS (instructed by Messrs EL Murphy & Co) appeared on behalf of the Respondent.
Shortly 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.
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
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."
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.
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."
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".
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."
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.
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.
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...
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