Bennett v Southwell

Negligence is assessed by asking whether a reasonable person in the defendant’s position would have contemplated a sufficient probability of injury. On a narrow, unmarked country road approaching a bend, a driver must allow for oncoming traffic and afford it as much space as reasonably possible. It is foreseeable that an oncoming motorist, confronted by a vehicle significantly on the wrong side of the road, may react in an emergency and collide. The claimant’s own panic and distraction may amount to contributory negligence, even where the defendant bears primary liability. Responsibility depends on the facts and may be apportioned equally.

The claimant’s Volkswagen Golf collided with the defendant’s Range Rover on a narrow, unmarked country road in Norfolk. The claimant was driving around a bend at approximately 40 mph. The defendant was approaching from the opposite direction and, before the collision, occupied a significant part of the claimant’s side of the carriageway.

The parties agreed that, at impact, the Range Rover was wholly on its correct side and the Golf was mainly on the wrong side. The court had to determine how the collision occurred, whether the defendant had acted negligently, and the extent of any contributory negligence by the claimant.

1. Liability. The defendant bore primary liability, but the claimant was also contributorily negligent. Each party was held responsible for an equal share of the accident.
2. Negligence and foreseeability. The court adopted the principle stated by Atkins LJ in Whippey v Jones [2009] EWCA Civ 452: negligence requires consideration of whether a reasonable person in the defendant’s position would have contemplated a sufficient probability of injury. A remote possibility is insufficient.
3. Application to the road conditions. A reasonable driver approaching a bend on a narrow road without centre markings should consider the road’s character, the bend, the need to give oncoming traffic as much room as possible, and the possible reaction of an oncoming motorist. A collision was foreseeable where the defendant’s vehicle occupied a significant part of the claimant’s side of the road. The submission that the claimant alone caused the accident was rejected.
4. Findings on causation and contributory negligence. The claimant was travelling at a safe speed and was initially on her proper side of the road. She was distracted by a Mazda and panicked when she saw the defendant’s vehicle encroaching onto her side. Her braking and manoeuvre caused her to enter the defendant’s path. Her statement that she had been stupid was not treated as an admission of primary liability.
5. The court rejected reliance on Whitford v Kubas UAB (a Company) [2012] EWCA Civ 1017 as determinative, observing that it was a decision on its particular facts.