Bennett v Southwell

This is a claim, arising out of a collision between a VW Golf and a Range Rover on the Lexham Road, East Dereham in Norfolk. The VW Golf was driven by Olivia Bennett (“the Claimant”); she has been driving since she was 17 years; she had not been involved previously in any road traffic accident; she has never had any penalty points added to her driving licence. The Range Rover was driven by Timothy Southwell, (“the Defendant”); he was 40 years old at the date of the accident; he has no driving convictions.

By order dated 17 December 2012, Master Yoxall ordered the trial of liability be tried first. Following a hearing on 1, 2 and 3 July judgment was reserved. This is the judgment of the Court.

Lexham Road is an unclassified country road, which on the approaches to the site of the collision passes through heavy woodland. The national speed limit of 60mph applies to the road. There were no road markings in the centre of the carriageway or at its edges. The tarmacadam surface tapered to a line of earth or mud before the grass verge. The carriageway width at the site of the collision is agreed to be 4.65metres. The width of the VW golf was 1.73metres. The width of the Range Rover was 1.93 metres. There was therefore enough room for the two vehicles, if occupying their proper side of the carriageway, to be driven past each other safely.

The claimant was driving in the direction of Castle Acre and West Lexham. The defendant was driving in the opposite direction towards Litcham. The collision occurred on a bend, a left-hand bend in the claimant’s direction of travel and a right-hand bend in the defendant’s direction of travel. For both drivers, the approach to the bend was along a straight stretch of road. For the defendant, that straight stretch of road had a slight uphill gradient. The view of each driver around the bend on the approach to the point of collision was estimated by the expert witnesses to be in the region of 60-70 metres.

The claimant, who had spent the weekend with a friend in Litcham, was driving alone to visit her parents for a late Sunday lunch; she was, I accept, under no pressure of time. She was very familiar with the road, having driven it regularly over a number of years. As she approached the bend, she noticed a red coloured Mazda MX5 coming out of the bend in the opposite direction of travel. She described the Mazda “zipping” past her “quite quickly” but there was no need for her or the driver of the Mazda to change course and they passed each other easily. From the point of entering the bend, she only has brief flashes of memory. She believed that she was braking as she entered the bend and recalled seeing the “nose” of the Range Rover poking around the bend in the distance. Her next memory is of seeing the Range Rover almost in front of her. She has a memory of braking and turning the steering wheel to the left but it seemed that no matter how hard she turned the wheel to the left, the car would not respond and she drove into collision with the Range Rover.

The defendant, his wife and daughter were following their friends Geoffrey and Renata Garfoot in the red Mazda car on their way to a dog show. The defendant’s evidence was that the red Mazda car was about 150 metres ahead of him and he was travelling at 40-45 mph. In his witness statement, he said that the off-side of the Range Rover was toward the middle of the road but not on the middle part of the road - following the experts’ evidence (post) he resiled from this earlier claim that he was driving completely on his proper side of the carriageway and accepted the offside of the Range Rover was partly over a notional centre line. Suddenly he saw the VW Golf coming off the bend, in the middle of the road and possibly some 70 metres away. The driver of the VW Golf made no attempt to drive to her nearside. In his witness statement, he said that when he saw the VW Golf coming off the bend, it was probably travelling at 60mph or so. He slammed on his brakes and turned to his nearside in an attempt to avoid the collision but the VW Golf kept coming towards him. At the point of collision he had regained his side of the carriageway completely, with his nearside on or close to the verge.

Renata Garfoot, who was driving the red Mazda, estimated that they were about 100 yds ahead of the defendant and his family. Her estimate of her speed was that it was probably a bit under 40mph as she came out of the bend and that the defendant must have been travelling at a similar speed because he was not catching up with her. She noticed the approaching VW Golf. She said it was travelling “fairly quickly” but not at such a speed as to give her any cause for concern; she said that when she heard the noise of the accident, she remembered being surprised that there had been a collision.

Geoffrey Garfoot confirmed his wife’s evidence. He said as the VW Golf approached, it moved slightly to its nearside but that was only because the road was not particularly wide at that point. He said that as the VW Golf passed, he recalled no conversation with his wife about the speed and recalled no concern about its speed but he remembered thinking it was travelling faster than he would have travelled on that stretch of road.

Of the speed of the Mazda, the claimant said that she recalled having a moment’s thought that she must tell her father that the red sports car was travelling too quickly for the road. Of her own speed, the claimant said that she believed that she was travelling between 30 to 40 miles per hour because she presumed that there was a speed limit of some 40mph on the country road. She said that she never drives at faster than 40mph on that road. She said that of all her friends, she is known to be a cautious driver. When cross-examined and asked why she made a mental note to tell her father about the red Mazda, she said she cannot now say why she did so but she accepted that the Mazda had unsettled her in some way.

The defendant said that when he went to help the claimant after the collision, he found her trapped and clearly badly injured. His evidence was that she kept saying “I’ve been so stupid”. While the defendant’s wife, Mr and Mrs Garfoot all went to the VW Golf, none heard any such comment. Mr Garfoot observed that the claimant was in no fit state to discuss the accident.

Police Constable Smart, who attended soon after the collision, spoke to the defendant. The defendant told him that the VW Golf “seemed to come out of nowhere at some speed in the middle of the road” and that he braked and turned to his nearside trying to avoid the collision. The defendant told him that he heard the complainant groaning and saying “I’ve been so stupid”.

Other police officers called on the claimant on 1 September 2010 after her discharge from hospital. Their note of the interview which lasted from 0915-0930 hours reads “Question: do you remember what happened? Answer: “Although I don’t remember the accident clearly. I do remember a car passing me which surprised me. I then felt an impact. I then remember somebody opening my car door and asking if I was OK”.

Cross-examined about this note, the claimant said she had mentioned seeing the Range Rover after the Mazda and that there had been more conversation in the 15 minutes than the brief summary indicates. Asked if she could explain the omission, she replied “police are police”. I am not persuaded I should draw any adverse inference from this briefest of summaries. It is inconceivable that there was no further relevant conversation in the 15 minutes.

The parties are agreed that at the moment of impact the Range Rover was wholly on its correct side of the road and the VW Golf was mainly on the wrong side of the road. They are also agreed that the extent of the damage to the VW Golf is consistent with a collision speed of less than 40mph. They are agreed that as the VW Golf was forced backwards, following the collision, by the continuing forward momentum of the Range Rover, the probable speed of the Range Rover at the moment of collision would have been about 10-12 mph and the probable speed of the VW Golf would have been double that, about 20-24 mph. I accept that evidence.

As the damage was to the off-side front of the VW Golf, it must follow the VW Golf had been driven onto a significant part of the defendant’s side of the carriageway. I accept that at the moment of collision, the front near-side of the Range Rover had been driven up to the near-side verge and so the Range Rover was completely on its proper part of the carriageway.

The parties are agreed there is photographic evidence of tyre marks made by the Range Rover as it was braked. Those marks run backwards from the point of collision for some distance towards the centre of the carriageway. They were not measured by police officers who attended immediately after the accident and the parties relied upon expert evidence (Footnote: ¹) to establish the likely length of those marks and, for the claimant, to prove they started on the off-side of a notional centre line in the defendant’s direction of travel. Those calculations were based on the factual assumption that the defendant was driving at his stated speed of about 40mph and the application of a reaction time of 1 second or so. Working backwards from a collision speed of about 10mph, it was contended the Range Rover would have been travelling some 53.5cm over the notional centre line, at the moment the defendant reacted to the presence of the approaching VW Golf.

Much time was taken in evidence of the expert witnesses and in closing submissions, particularly those on behalf of the claimant, in a consideration of the distance travelled by the Range Rover travelling at a mean speed of 42.5 mph (and so conveniently 19 metres per second) and depending upon whether the defendant’s reaction time was the 0.68 seconds advised by the Highway Code or 1 or 1.5 seconds. On a careful analysis of the experts’ evidence, I have concluded it proves very little because it was necessarily based upon supposition and conjecture.

While the claimant broadly accepts the defendant’s evidence about his speed, I have to express my reservations about the deployment of the evidence of these calculations. Mr Harris, relying upon them, submitted that the Range Rover was travelling 0.93 metres from its nearside and so, as its width is 1.93 metres, 1.79 metres from the off-side verge. On these calculations, he submitted the Range Rover would have been some 53.5cm over the notional mid-line leaving just enough room for the VW Golf – although he conceded that in practical terms there would have been insufficient space for the two vehicles to pass.

My conclusion on the balance of probabilities is that the defendant, as he drove towards the bend, was occupying a significant part of the off-side carriageway so as to give the clear impression to the approaching claimant that there would be insufficient room for her to drive safely past him. I am not prepared to conclude that the start of the tyre marks is necessarily indicative of the furthest ingress on to the other side of the road by the Range Rover.

While the defendant in his written statement alleged that the claimant was driving at some 60 mph, he resiled from that in his evidence, presumably because he found no support in the evidence of Mr and Mrs Garfoot (Footnote: ²). I observe that his initial evidence about the position of the Range Rover and the speed of the VW Golf, and his change of evidence in both respects, gave me the clear impression that he was not prepared to accept any fault. These were not matters of simple miscalculation – there is a significant difference between speeds of 60mph and 40mph and he must have known on which part of the road he was driving.

I accept the claimant’s evidence that she was driving at about 40 mph, a safe speed for both the road and to negotiate the bend. I am not persuaded that the impressions of Mr and Mrs Garfoot as to her speed suggest otherwise.

The claimant’s acceptance that the Mazda had unsettled her in some way, which is against her interests in some respects but which I am satisfied is entirely credible, needs some explanation which she herself cannot provide. On the balance of probabilities, I am satisfied that the explanation is that the Mazda, which had been driven at about 40mph around the bend, started, with the straight stretch of road ahead, to accelerate. That and its sport’s car appearance temporarily distracted the claimant (who is a cautious driver) as she entered the bend and saw the approaching Range Rover occupying a significant part of her side of the carriageway. I am not persuaded that she was, at that moment, on the wrong part of the carriageway and I have concluded that but for the presence of the defendant’s car, she would have remained on her part of the carriageway. She was, as I have accepted, a careful driver who did not drive at speed but she reacted in panic, on the spur of the moment by braking. While her recollection is that she tried to drive to her nearside, I am satisfied that must be wrong because she was not driving at such a speed as would make that impossible. While I accept the evidence of the defendant that he heard the claimant say “I’ve been so stupid”, I do not regard that as an admission of primary liability. It must be borne in mind that she was on any view in a shocked state.

Mr Harris drew the court’s attention to the observations of Atkins LJ in Whippey v Jones [2009]EWCA Civ 452:

“The question of whether a person has acted negligently is not answered simply by analysing what he did or did not do in the circumstances that prevailed at the time in question and then testing it against an objective standard of “reasonable behaviour”. Before holding that a person’s standard of care has fallen below the objective standard expected and so finding that he acted negligently, the court must be satisfied that a reasonable person in the position of the defendant (i.e. the person who caused the incident) would contemplate that injury is likely to follow from his acts or omissions. Nor is the remote possibility of injury enough; there must be sufficient probability of injury to lead a reasonable person (in the position of the defendant) to anticipate it”.

Mr Harris submitted the issue which the court must determine in relation to breach of duty is whether the defendant’s position on the road gave rise to a reasonably foreseeable risk of an accident, such that the defendant should have anticipated that and moved further to his nearside before the claimant came into view. (Footnote: ³) Mr Harris submitted that the accident was not foreseeable because the defendant had ample time to drive to his near-side, completely onto his part of the carriageway, so as to allow space to the claimant to drive past him on her part of the carriageway. Mr Harris submitted it was the act of the claimant simply driving into the path of the defendant which was causative of the accident.

I am not persuaded there is any force in that submission. A reasonable driver in the defendant’s position would have regard to the nature of the road and in particular the approaching bend, the absence of road markings, the need to afford oncoming traffic as much space as possible as it negotiated the bend and the possible reaction of an oncoming motorist, driving at a safe speed on the proper part of the carriageway, faced with a vehicle significantly on its wrong part of the carriageway. In such circumstances, the approaching driver will have to react in an emergency. Not every approaching motorist, in those circumstances can be relied upon to react appropriately and so a collision with consequential injury and damage would have been entirely foreseeable.

The primary liability for this collision must be that of the defendant although there must also be a significant finding of contributory negligence on the claimant’s part. While I am satisfied she was not driving at speed and was driving on her proper part of the road as she entered the bend, I have concluded, on the balance of probabilities that she was distracted for some reason by the Mazda motorcar. That occurred as she drove around the bend and while in ordinary circumstances she would have driven around the bend safely, the presence of the defendant’s Range Rover significantly on her side of the road ahead, caused her to panic and as she braked, to drive into collision with it.

My conclusion is that each party must bare an equal share of the responsibility for this accident.