Whittle v Bennett

A driver’s breach of a road-safety standard is actionable only where it amounts to negligence in the circumstances and causes the claimant’s injury. Excess speed does not establish negligence where a reasonable driver had no reason to anticipate an extraordinary manoeuvre by another road user. Nor does following too closely establish causation where the distance from the vehicle ahead did not reduce the following driver’s ability to respond to the actual emergency.

On appeal, a party should not be permitted to advance a causative factual case that was not put to the trial judge.

The claimant made a slow U-turn on the A25 after passing his destination. The respondent, who had been following another vehicle and was travelling at about 60 mph, braked but collided with the claimant’s car. The claimant sustained catastrophic injuries.

He alleged that the respondent had driven too fast and too close to the vehicle ahead. His claim was dismissed by a High Court judge, who held that the respondent’s driving had not caused the accident and, alternatively, assessed the claimant’s contributory negligence at 80 per cent.

The claimant appealed, challenging causation and apportionment. He also sought to argue that the respondent’s view had been obstructed by following too closely.

1. The appeal was unanimously dismissed. Lord Justice Leveson’s judgment was agreed by Sir Igor Judge and Sir Anthony Clarke MR. The trial judge’s findings and conclusion that the respondent’s conduct did not cause the collision were properly open to him.

2. The Court accepted that the duty of a driver who follows too closely is capable of extending to all persons who may reasonably be affected by that driving. It did not accept the narrower view that such a duty is owed only to the driver in front. That wider formulation did not assist the claimant, however. The vehicle in front neither collided with the claimant’s car nor made the respondent less able to deal with the U-turn. Its presence, and therefore the gap between the two following vehicles, were legally irrelevant to the collision.

3. Although exceeding the 50 mph limit was unlawful, negligence depended on the circumstances. The claimant’s U-turn across the path of following traffic was an unexpected and extraordinary manoeuvre which the respondent was not required to anticipate. In any event, the finding was that the respondent was about 30 metres away when the manoeuvre became apparent. Even at 50 mph he could not have stopped in time. The asserted excess speed therefore did not cause the accident.

4. The claimant could not, on appeal, introduce a new factual case that the respondent had been materially unsighted by following too closely. That case had not been advanced at trial and was inconsistent with how the evidence had been put below. Apportionment consequently did not arise.

• Court of Appeal (Civil Division): by [2006] EWCA Civ 1538, dismissed the claimant’s appeal with costs.
• High Court, Queen’s Bench Division: HHJ Previte QC dismissed the claim, holding that the respondent’s driving did not cause the accident; alternatively, he assessed the claimant’s contributory negligence at 80 per cent.