Arnesen v Heffey

An unexpected tyre blow-out in a motorway fast lane must be assessed in the circumstances confronting the driver at the time. Negligence is not established by hindsight because other vehicles could avoid the stationary vehicle; they may have had different speed, control and traffic conditions. A driver who is slowing, struggling to control a car and confronted by a stream of traffic may have no reasonable safe opportunity to reach the hard shoulder. Courts should not impose an unpleaded, immediate manoeuvre to the central reservation as a counsel of perfection. Motorway users must maintain a proper lookout and sufficient following distance. A collision with a stationary obstruction will normally indicate excessive speed, following too closely, failure to keep a lookout, or a combination, subject to the circumstances creating the obstruction.

Arnesen v Heffey arose from a collision on the M54. The defendant’s car suffered a tyre blow-out while travelling in the fast lane and came to rest there with its hazard lights operating. The claimant, riding a motorcycle, then collided with it.

On 12 March 2002, His Honour Judge Bray in the Northampton County Court held the defendant 75 per cent liable and found the claimant 25 per cent contributorily negligent. The defendant appealed against the finding of negligence. The central issues were whether she had a reasonable opportunity to move to the hard shoulder or central reservation, and whether the claimant’s lookout and following distance made him responsible for the collision.

The appeal was allowed unanimously. Sir Murray Stuart-Smith gave the first judgment. Lord Justice Judge agreed and added that nothing more could reasonably have been expected of the defendant. Lord Justice Potter also agreed.

1. The defendant’s response to the blow-out. The trial judge’s principal conclusion was unsustainable. There was no evidential basis for rejecting the defendant’s and her passenger’s evidence that the nearside lane contained a steady stream of traffic. The fact that vehicles behind could move into that lane did not show that the defendant, whose car was slowing and difficult to control, had a comparable safe opportunity to do so.
2. The proposed move to the central reservation. The alternative criticism that the defendant should have driven towards the central reservation was unpleaded and, in substance, an afterthought. There was no proper opportunity for reflection between the car coming to rest and the collision seconds later. Treating that manoeuvre as reasonably required imposed too high a standard and amounted to a counsel of perfection.
3. The claimant’s conduct. The other drivers observed the obstruction and took avoiding action. The two motorcyclists did not. They were travelling only two or three car lengths behind the vehicle ahead in a fast-moving motorway lane, giving themselves no adequate margin to react. This was contrary to the Highway Code guidance concerning a two-second interval. Their failure to keep a proper lookout, and their excessive closeness or speed, caused the accident.
4. Disposition. The finding of negligence against the defendant could not stand. Responsibility rested on the claimant rather than the defendant. The appeal was allowed, with counsel to agree a minute of order.

• Court of Appeal (Civil Division) — In Arnesen v Heffey, [2002] EWCA Civ 1058 (9 July 2002), the appeal was allowed.
• Northampton County Court — On 12 March 2002, His Honour Judge Bray apportioned liability 75 per cent to the defendant and 25 per cent contributory negligence to the claimant.