Whitehead v Bruce & Ors

Appellate courts should show strong restraint when reviewing evaluative findings on negligence and apportionment. A driver may be negligent despite complying with the speed limit where speed is unsuitable to the road, visibility and foreseeable emergencies. A motorist overtaking across a solid white line must clear the opposing lane promptly; unnecessary delay can amount to causative negligence. The but-for test may be satisfied by the judge’s overall balance-of-probabilities finding, even if one passage uses tentative language. Apportionment may be altered where the lower court mischaracterises culpability and places the allocation outside the permissible range.

Following a three-day trial, the High Court found that the claimant’s injuries in a motorcycle accident were caused by the negligence of all three defendants. Liability was apportioned 50% to the first defendant, 20% to the second defendant and 30% to the third defendant.

The first defendant appealed against liability and apportionment. The second defendant cross-appealed against the finding of liability. The third defendant accepted liability and sought to preserve his 30% allocation. The central issues were whether the findings on speed, negligence and causation should stand, and whether the apportionment fell within the range open to the trial judge.

The Court of Appeal dismissed both challenges to liability, but allowed the first defendant’s appeal on apportionment.

1. Appellate review. An appeal against a trial judge’s evaluation of facts is approached with the restraint applicable to an appeal against the exercise of discretion. Where applying a standard such as negligence involves degree rather than a question of principle, the appellate court should be very cautious before differing from the trial judge. The court relied on Manning v Stylianou [2007] EWCA Civ 1655, Assicuriazioni Generali SpA v Arab Insurance Group [2002] EWCA Civ 1642 and Bessant v South Cone Inc [2002] EWCA Civ 763.
2. First defendant. Compliance with the speed limit did not prevent a finding of excessive speed. The relevant question was whether the speed was suitable for a country road with bends, restricted visibility and foreseeable emergencies. The judge’s hypothetical example involving a stationary HGV was not critical to the conclusion. The finding of negligence was therefore upheld.
3. Second defendant. Overtaking the stationary vehicle and giving it a wide berth were not themselves negligent. However, having crossed a solid white line into the path of oncoming traffic, she was required to return to her own lane with due despatch. Her unnecessarily slow progress and prolonged obstruction were negligent. The judge’s conclusion that the accident would not have occurred but for that negligence satisfied the but-for test when the judgment was read as a whole and was supported by the evidence.
4. Apportionment. Apportionment involves proportion, balance, relative emphasis and the weighing of competing considerations. Interference is justified only in exceptional circumstances, including an error of principle, a misapprehension of the facts or a conclusion outside the permissible range: The MacGregor [1943] AC 197; Wells v Mutchmeats Ltd & Anr [2006] EWCA Civ 963; and Plumb v Ayres and Ryford The Times, May 11, 1999. The trial judge had mischaracterised the second defendant’s culpability. Liability was redistributed as 35% for the first defendant, 35% for the second defendant and 30% for the third defendant.

• High Court of Justice, Queen’s Bench Division: Following a three-day trial, His Honour Judge Armitage QC found all three defendants negligent and apportioned liability 50% to the first defendant, 20% to the second defendant and 30% to the third defendant.
• Court of Appeal (Civil Division): In [2013] EWCA Civ 229, the appeal and cross-appeal on liability were dismissed. The appeal on apportionment was allowed and liability was redistributed 35%, 35% and 30% respectively.