Sharp v Ministry of Defence

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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:

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."

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.

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.

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:

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".

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.

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.

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 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.

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.

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.

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 the adjustment 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 Spr Sharp's cab have been crushed causing his injuries even if V7*s braking system had been operating to its optimum efficiency?

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.

Secondly, Dr Ninham put the reduced efficiency of V7'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.

Against that background, I return to the critical question which is whether V7's cab 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.

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.

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.

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.

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 of V8 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.

I turn to the impact speed. As with the initial speed, the impact speed has to have been 15 mph 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.