Whittle v Bennett

On 30 April 2002, at about 20.36 hours, an accident occurred on the A25 road between Dorking and Reigate between a Ford Mondeo motor car (the Mondeo) driven by Mr John Whittle, the claimant, and a Vauxhall Nova motor car (the Nova) driven by Mr James Bennett, the defendant. Two passengers accompanied the claimant, Mrs Carole Noyce and her daughter, Miss Jodie Noyce, then aged 12. The claimant, who was aged 39 at the date of the accident, suffered very serious injuries, including head injuries, and is now a patient. The defendant suffered a punctured lung, cuts to his leg and head, and facial injuries. The claimant and the defendant were both taken by ambulances to East Surrey hospital at Redhill. Mrs Noyce and Jodie Noyce were also injured. The trial was on the issue of liability only.

The Mondeo was being driven along the A25 from Dorking towards Reigate, on a single carriageway stretch subject to a 50 mph limit. The claimant was looking for an address, Whitelands, where it was intended that Mrs Noyce should stay overnight. Whitelands is on the claimant’s side of the road, set back from the road frontage. The claimant overshot the entrance to Whitelands. He continued on slowly in the direction of Reigate, close to the curb with the left hand indicator flashing. He told his passengers that he would go on a little bit and turn. The Mondeo did not stop; it continued to go forward at about 5 mph close to the curb. The claimant began to make a U-turn across the road from about 60 metres beyond the entrance to Whitelands. Mrs Noyce and Jodie Noyce are confident that before beginning the U-turn the claimant looked in the rear view mirror and the off-side wing mirror, and put on the right hand indicator. Prior to the claimant beginning to make the U-turn Mrs Noyce, who was sitting in the front passenger seat, and Jodie Noyce, who was the rear seat passenger, looked to the rear of the Mondeo and satisfied themselves that there were no vehicles coming towards the Mondeo on their side of the road. The road behind the Mondeo is straight for a distance of between 144 and 160 metres, at which point there is a substantial bend in the road. The difference in the estimate of the distance from the bend to the Mondeo depends on whether after the bend a vehicle is near the curb or near the centre of the road. If it is near the centre of the road the distance is 144 metres. There was nothing to obstruct the view of the claimant, 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.

The defendant’s home address is at Buckland, Surrey; it is a short distance on the Reigate side of the accident location. In April 2002 the defendant was aged 22. He had passed the driving test in November 1999. He was very familiar with the A25 road. On 30 April the defendant and a friend of his, Mr John Taylor, who was aged 19 in April 2002 and who lived in Dorking, had met at Dorking and decided to visit a mutual friend in Reigate. The defendant had driven to Dorking in the Nova, a car which belonged to his father and which his father had modified. The modifications were to the springs, and to fit alloy wheels and a large bore exhaust. These modifications did not affect the performance of the car but may well have enhanced the impression of speed because of the noise from the exhaust. The controls of this Nova were exactly the same as another Vauxhall car owned by the defendant. The defendant had driven his father’s car on three or four occasions prior to 30 April.

The defendant and Mr Taylor made the journey from Dorking towards Reigate in their own cars – the defendant in the Nova and Mr Taylor in yet another Vauxhall Nova. Mr Taylor’s Nova had been modified in the same way as Mr Bennett senior’s Nova. It had a wide exhaust which produced more exhaust noise than a standard exhaust. This modification enhanced the impression of speed. The defendant and Mr Taylor set off for Reigate with Mr Taylor’s car in front of the defendant. The defendant left what he calculated to be a two second gap, which he put at four to five car lengths, between his car and Mr Taylor’s car. The weather was dry but the road surface was damp in some places. It was daylight but the defendant had his side lights on, as was his custom when driving. At a point on the Dorking side of the accident location, somewhere between the road leading to Brockham and the left hand bend in the road which precedes the accident location, Mr Taylor and the defendant overtook a white Mercedes Sprinter van being driven by Mr Pollitt. Mr Pollitt, who was aged 44 in April 2002, is a very experienced driver. He drives about 30,000 miles per annum and is very interested in motor sport. On the day of the accident Mr Pollitt was driving from Dorking to Reigate. His van is large and has no rear view mirror because of a bulkhead. It has large door mirrors. He was driving with his side window down, which was his usual habit.

Mr Pollitt’s evidence is that after he had passed a short section of dual carriageway, where there is a turning to the right to the village of Brockham, and was on a section of straight single carriageway, he was over taken by Mr Taylor and the defendant. He put the place of being over taken at Cottage Farm. He marked the place on Plan A, a copy of an aerial photograph showing the stretch of the road from the turning to Brockham to slightly beyond the accident location. In his witness statement he says that he was suddenly startled by the very loud exhaust note of a car overtaking him, and that immediately behind the first car there was a second Nova which was within one car length of Mr Taylor’s car. It appeared to him that the two Novas were moving in unison. As the two cars passed him and pulled back onto their correct side of the road he looked at his speedometer, which confirmed that his speed when being overtaken was 50 mph. He estimated that Mr Taylor and the defendant were driving at least 20 mph faster than him. He put his ‘best approximation’ of their speed at 25 to 30 mph faster than him, ie at 75 to 80 mph. He went on to say that as the two Novas approached the left hand bend ahead of him they both took what has been described as the ‘racing line’, ie they positioned themselves so that their cars were near the centre line at the beginning of the bend, close to the apex at the bend, and near the centre of the road after the bend. He thought that the cars were still only a car’s length apart as they took the bend. He noticed that the brake lights of the defendant’s car came on momentarily as the defendant took the bend. Thereafter both cars were out of Mr Pollitt’s sight until he had rounded the bend a few seconds later. By the time Mr Pollitt had rounded the bend the accident had occurred.

The defendant gave a different account of overtaking Mr Pollitt. His evidence was that he and Mr Taylor overtook Mr Pollitt shortly after the junction with the turning to Brockham and that to do so he had driven over the part of the road where there is a hatched triangle to protect vehicles entering or exiting the road to Brockham. He said that he was driving about ‘two seconds or four to five car lengths behind Mr Taylor and that the white van was doing about 40 mph. He estimated Mr Taylor’s speed and his own speed when overtaking at 50 mph. When cross-examined about entering the hatched area he said that it had been safe to do so because there was no vehicle entering or leaving the junction.

After overtaking the van he maintained his speed of 50 mph. He could not remember what line he had taken at the left hand bend but agreed that he had ‘dabbed’ the brakes. He said it was necessary to brake because the road was damp. After the defendant had negotiated the left hand bend behind Mr Taylor he saw Mr Taylor’s right hand indicator come on and Mr Taylor move towards the offside of the road. He noticed a stationary or slow moving Mondeo on the nearside with its nearside indicator on. Due to the low speed and left hand indicator he thought that the Mondeo was slowing down to stop. This did not pose a problem for the defendant who thought he could overtake using the centre part of the road, i.e. the area hatched but with broken white lines at the sides of the hatching. The defendant indicated with his right hand indicator to pass the Mondeo. In his witness statement the defendant says ‘As John got close to the Mondeo it suddenly started to move out, still displaying its nearside indicator. My first thought was that the driver was simply rejoining the traffic. Then I realised that the driver was in fact moving across the carriageway and I realised that he was trying to carry out a U-turn manoeuvre’. He said that Mr Taylor managed to swerve (to the right) and avoid the Mondeo. The defendant, who estimated that he was then 20 metres from the Mondeo, attempted similar avoiding action. He steered for the offside of the road but saw a cyclist approaching in the opposite direction. He then ‘hit the brakes’, he ‘slammed them down’. The front wheels locked; the car skidded; and he hit the Mondeo. He estimated that at the time he braked he was 10 metres from the Mondeo. Mr Bennett was injured in the accident. According to the police report he suffered a punctured lung, cuts to his leg and head and facial injuries. When interviewed on 1 May 2002 he said that the Mondeo ‘just pulled across in front of me as by (sic) he were doing a U-turn’. He said the Mondeo had pulled out without warning. He said there was no right hand indication from the Mondeo. He did not mention the presence of a cyclist on the other side of the road. He said that when overtaking the white van his speed was 45 – 50 mph and that there was a ‘two second, or four to five car lengths gap between him and Mr Taylor.

Mr Taylor was not called as a witness. He made a statement to the police under caution (the police thought that there could have been a fatality) on the day of the accident, and was interviewed by the police on ₂₅th July. In his statement he said that when he ‘overtook a white van and James followed we were doing about 70 mph’. In the statement he said what when 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’. When interviewed almost three months after the accident he said that his speed when he overtook the white van had been 55 – 60 mph and that the defendant was about three car lengths behind him. He said that the Mondeo had not signalled prior to attempting a U-turn. Both the defendant and Mr Taylor told the police, and the police noted, that there were no passengers in either of the Nova cars. Mr Taylor did not give evidence at trial. I am confident that I can accept what he said to the police on the day of the accident as being reliable evidence.

There are reports from accident reconstruction experts, Dr Ashton for the claimant, Dr Searle for the defendant. There are two areas of agreement and disagreement reports. The first prepared by Dr Ashton and Mr Neades (a witness for the defendant); the second by Dr Ashton and Dr Searle. Dr Ashton and Dr Searle gave evidence.

On the assumption that the Mondeo did not stop before beginning to make a U-turn, there is agreement between Dr Ashton and Dr Searle as to the progress of the Mondeo when making the U-turn, the time that elapsed in making the turn up to the point of the accident, the position of the Mondeo and the Nova at the moment of impact and the angle at which the Nova collided with the Mondeo. On the evidence of Mrs Noyce and Jodie Noyce I find that the Mondeo did not stop before making the U-turn; it continued to move forward slowly at about 5 mph until it began the U-turn. The experts agree that at the beginning of the U-turn the Mondeo’s progress was slow but increased as the turn was being made. Dr Ashton estimates the speed for the latter part of the turn at 9mph; Dr Searle at 12.9 mph. They agree that the distance travelled by the Mondeo in making the U-turn from the curb to the point of impact was 8 metres. On this basis the time which elapsed from beginning the U-turn to the impact was, according to Dr Ashton, 2.5 seconds, according to Dr Searle 2.00 seconds. It is common ground between them that because the Mondeo commenced the turn slowly, one second would have elapsed before it would have been apparent to a driver approaching from behind that the Mondeo was making a U-turn. Therefore a driver approaching from behind had only one second, or at the most 1.5 seconds, to react and take action.

There is disagreement between the experts as to the speed at which the defendant approached the Mondeo. On the basis that the Mondeo did not stop before making the U-turn Dr Ashton estimates that the defendant’s speed as he approached was between 65 to 71 mph. Dr Searle, basing his estimate on the extent of the impact damage, and bearing in mind the weakened state of the structure of the Nova due to rust, and the skid distance, estimates a speed in the low 50s. He accepted that if the speed at impact was 52 – 55 then the approach speed would have been 57 – 60 mph. As to the speed of the Nova at impact, in their November 2005 joint statement Dr Ashton and Mr Neades suggest that the defendant was probably travelling at 52 – 55 mph, with a small chance that it was less than 46 mph or greater than 61mph. Dr Searle, in the January 2006 joint statement, suggests that the speed was 47 mph or less at impact and 52 at the start of the skid mark observed by the police. It is common ground that the skid marks extended for 10 to 11 metres and that the defendant’s speed would have reduced by 5 mph during the skid.

In addition to the lay witnesses as to the manner in which the defendant drove and the circumstances of the accident, three witnesses – Ms Deborah Heron (the claimant’s partner for 13 years, employed as an intensive care nurse), Mr Ray Noyce (husband of Mrs Carole Noyce and father of Jodie Noyce) and Mr Simon Bennett (father of the defendant) gave evidence relevant to the credibility of the defendant. The evidence related to the manner in which the defendant is alleged to have behaved shortly after the accident when he was a patient in East Surrey hospital. Ms Heron’s evidence was that a young man, identified to her later that evening as being the defendant, who was in a bed next to the claimant’s bed, was sitting up on a bed with his legs stretched out in front of him. She saw an older man sitting beside him. She said the young man was laughing and joking about the accident and that he used expletives about the driver of the Mondeo and the U-turn. She was so upset by what she heard that she had to take herself out of the ward. Mr Ray Noyce, who arrived at the hospital about two to three hours after the accident, saw a young man in a bed next to Mrs Noyce. The young man was speaking to an older man and laughing and joking about having hit someone in his car. Two police officers were standing near at the time, one of whom told Mr Noyce that the young man was the defendant. Mr Simon Bennett was informed of the accident soon after it had happened. He drove to the scene and found his son lying on the verge in a distressed state. The defendant was taken to hospital by ambulance. Mr Bennett senior arrived at the hospital at about 21.45. He waited in reception for about an hour before he was taken to the defendant’s bed at the far end of the unit. There were four beds, the defendant being in the end bed with a wall on one side and a curtain on the other side. Mr Bennett found the defendant to be very distressed; he was wearing a neck brace and had a drain inserted into his chest. Mr Bennett had very little conversation with his son because of his condition. Mr Bennett stayed with his son until about 3.00 when a police officer was allowed to see him. Mr Bennett was aware that there was another patient in the bed next to his son but he did not know who it was and he did not know that the claimant was in the same hospital. The defendant did explain to his father that someone had ‘turned across him’ but he did not identify that person. Mr Bennett was certain that his son had not used bad language whilst he was with him.

Whilst I am sure that Ms Heron and Mr Noyce have told me what they believe occurred and that they believe that it was the defendant who made the remarks which so offended and upset them, their accounts are not consistent with each other, in particular with regard to which bed the defendant was in. Ms Heron thought the offensive remarks were made about the man in the next bed, ie the claimant; Mr Noyce said that the defendant was in bed next to Mrs Noyce. Both Ms Heron and Mr Noyce had to rely on what other people, who had no prior knowledge of the identity of the defendant, told them in order to identify the person who made the remarks. There is obviously a real risk of misidentification here. The witness who could be certain about the identity of the defendant is, of course, his father, who I find to be a reliable witness. My conclusion is that the remarks and bad language attributed to the defendant did not come from him. In any event, if I had been satisfied that the remarks and language did come from the defendant that would not, in the circumstances of his injuries and condition at the time, of itself have caused me to disbelieve or doubt his evidence about the circumstances of the accident.

I prefer Mr Pollitt’s evidence to the defendant’s. In all respects, save for his evidence that there was a passenger in the front of the defendant’s Nova, as to which Mr Pollitt was mistaken, I found his evidence convincing. I accept his evidence as to the place where and high speed at which he was overtaken by Mr Taylor and the defendant. His estimate of the speed of the Nova’s as they overtook him may have been enhanced by the loud noise from the modified exhausts and the fact that Mr Pollitt’s side window was down. I do not think that his mistake about the passenger discredits the rest of his evidence. At the scene of the accident it was Mr Pollitt who summoned the emergency services and who, having served in the Territorial Army Field Ambulance service, aided the claimant until those services arrived. Being the first person on the scene and being extremely busy at the scene, makes it less surprising that he made a mistake about there being a passenger in the Nova. I find the defendant’s evidence as to the place of overtaking and the speed unreliable. My conclusions are that Mr Taylor and the defendant overtook Mr Pollitt when the Mercedes van was at Cottage Farm and did so at a speed of not less than 70 mph. I accept that Mr Taylor and the defendant continued at the same speed as far as the bend in the road. Mr Pollitt saw the defendant ‘dab’ his brakes at the bend, which must have slowed him on the bend.

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 four to five car lengths behind Mr Taylor and followed the line being taken by Mr Taylor.

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 four to five car lengths. It could not have been as close as one 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 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 off side, 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.

Although it is not the claimant’s primary case that the defendant failed to observe or ignored the right hand indicator on the Mondeo the point arose in the evidence. I should therefore deal with it.

Mrs Noyce and Jodie Noyce said that the claimant put on his right hand indicator before beginning the U-turn. Mr Taylor does not mention this in his statement to the police or interview, nor does the defendant in his statement to the police or interview or in his evidence to the court. 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 A25 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 A25 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 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.

Mr Bate-Williams, for the defendant, submits that the defendant’s driving did not cause the accident or the claimant’s injuries. He submits that the sole cause of the accident and injuries was the claimant’s failure to observe either of the Novas approaching from behind before he made, or when making, the U-turn. It is common ground that the Nova’s were there to be seen. Why the claimant and his two passengers failed to see the Novas is inexplicable. Possibly they looked before the claimant began to make a U-turn and then failed to continue looking. It is difficult to imagine that an experienced driver, who had decided to make a U-turn on an A road with a limited view behind him, would not have made absolutely certain that nothing was coming from behind before making such a potentially dangerous manoeuvre and would not have continued to observe whether a vehicle was approaching from behind. In all the circumstances I am compelled to find that the claimant’s failure to make sure that no vehicle was approaching from behind before or when making the U-turn was grossly negligent. Mr Bate-Williams submits that the defendant’s speed at the time when he realised that the Mondeo was making a U-turn has, in the circumstances of this case, no bearing on causation. I have found that at that time the defendant’s speed was about 60 mph, 10 mph in excess of the limit for the road. Exceeding the speed limit is unlawful but not, in itself, negligent. Whether it is negligent depends on the circumstances. 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.

Mr Grundy, for the claimant, accepts that the claimant’s own negligence can not be denied, but submits that the defendant was negligent in two respects, namely in exceeding the 50 mph limit and in driving too close behind Mr Taylor, and that such negligence was a cause of the accident. As to the former, I have found that the defendant’s speed of 60 mph was not a cause of this accident. As to the latter I do find that the defendant was not keeping the recommended distance behind Mr Taylor. The defendant’s evidence, which I have accepted on this point, was that he was ‘two seconds or four to five car lengths behind Mr Taylor. The recommended distance between vehicles travelling in the same direction is the distance that the following vehicle would cover in two seconds (Highway Code). Given that the average car length is four metres (Highway Code) the defendant’s estimate based on four to five car lengths gives a distance of only 16 – 20 metres. A speed of 50 mph is 22 metres per second. Five car lengths at this speed is about one second. At 50 mph the defendant should have been 10 – 12 car lengths, or 40 – 48 metres, behind Mr Taylor. At 60 mph he should have been 11 – 13 car lengths, or 45 – 53 metres, behind Mr Taylor. 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. Mr Grundy ‘s submission is, in effect, that the defendant should have driven within the 50 mph speed limit and at the recommended distance behind the car ahead, and that if he had done so he would have been able to avoid the wholly unforeseeable manoeuvre of the claimant. Drivers of motor vehicles are, of course, expected to anticipate carelessness by other road users. To expect them to anticipate a U-turn on an A road into the path of following vehicles would be, in my judgment, an ‘unattainable counsel of perfection’.

Further even if, at the time when he realised that the Mondeo was making a U-turn, the defendant had been driving at 50 mph and been the recommended distance behind Mr Taylor he would not have been able to avoid the accident. His total distance from the Mondeo at the time when he realised that the Mondeo was making a U-turn would have been about 45 metres at 50 mph. At that speed and that distance the defendant would not have been able to stop before colliding with the Mondeo. But the collision occurred not because the defendant failed to keep the recommended distance behind Mr Taylor, nor because of the defendant’s speed of about 60 mph, but because the claimant made the U-turn into the path of the defendant in circumstances in which the defendant could not avoid a collision. In my judgment the gross negligence of the claimant in making the U-turn in the circumstances I have set out, excludes 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.

In the event that my conclusion that the defendant’s driving was not a cause of the accident is erroneous, either because of the defendant’s speed of about 60 mph at the time when realised that the claimant was making a U-turn, or because he failed to keep the recommended safe distance behind Mr Taylor, my apportionment of liability would be 80 per cent claimant 20 per cent defendant.

My proposed order for costs is that the claimant do pay the defendant’s costs on the standard basis to be subject to detailed assessment, if not agreed.