Green v Bannister

Negligence is not avoided because the precise accident was unusual. A driver reversing at night in a constricted, ill-lit road must take particular care to identify what may be in the vehicle’s path. The relevant question is whether the possibility of someone being there was real, not whether the person’s precise condition or manner of arrival could reasonably have been anticipated. Where the evidence permits a finding that a more careful lookout would probably have revealed the danger in time to avoid it, the failure is both negligent and causative. The injured person’s contribution to creating the danger is then relevant to contributory negligence and apportionment.

Frank Green brought a negligence claim against Michelle Bannister after she reversed her father’s car along a residential cul-de-sac at night and ran over him while he was lying in the roadway. The trial judge found that Bannister was entitled to reverse out of the road, but had failed to keep an adequate lookout by using her nearside mirror or looking over her left shoulder. Liability was apportioned 40 per cent to Bannister and 60 per cent to Green.

Bannister appealed the findings on negligence and causation, and alternatively the apportionment. The apportionment issue was not argued. The central issues were whether the standard of care required the additional lookout and whether the evidence supported the finding that it would probably have enabled her to avoid the accident.

1. Appeal dismissed. The trial judge was entitled to find that reversing slowly at night along a constricted and ill-lit road required particular attention to what might be in the vehicle’s path. Although Bannister was not negligent merely because she chose to reverse rather than execute a three- or four-point turn, she ought, once the car was travelling towards the mouth of the road, to have checked the nearside wing mirror as well as looking over her right shoulder.
2. The precise circumstances were unusual, but the possibility that a person might be in the reversing path was real. That possibility, rather than the precise way in which Green came to be there, supplied the relevant basis for negligence.
3. The recorder was entitled to infer causation. The available evidence, including the position of the street lamp, Green’s light-coloured clothing and evidence about changing visibility in the mirrors, permitted the conclusion that Bannister would probably have seen him in time to stop. Once that conclusion was open, the failure to keep the fuller lookout was both negligent and causative.
4. Green’s voluntary intoxication and his role in creating the danger justified treating him as the more blameworthy party. The 60:40 apportionment could not be impugned in the absence of a cross-appeal and was not unfair to Bannister. The court noted, without deciding the point, that Eagle v Chambers [2003] EWCA Civ 1107 might suggest that the apportionment was over-generous to her.

• Court of Appeal (Civil Division): [2003] EWCA Civ 1819. The appeal from the Barnsley County Court was dismissed.
• Barnsley County Court: Mr Recorder Goose QC found Bannister negligent for failing to keep an adequate lookout, apportioned liability 40 per cent to her and 60 per cent to Green, and rejected negligence in choosing to reverse out of the cul-de-sac.