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Law Bulletin - February 2007

Speed was irrelevant

W had failed to notice a turning off a busy single carriageway road and tried to do a U-turn. Another vehicle managed to overtake W but D couldn’t and he collided with W’s vehicle.

D was driving very close to the other vehicle and both were travelling at excessive speeds. The trial Judge had dismissed the claim, holding that, in any event, W had been 80 per cent contributorily negligent. W appealed the decision.

The Court of Appeal held that, even though D owed a duty of care not only to adjacent vehicles but also to other road users who might foreseeably be affected by his excessive speed, the principle was of no assistance to W because he had been manoeuvring a U-turn in the road at a dangerous point and D would not have been able to stop even if he had not been speeding.

The appeal was dismissed.

Whittle -v- Bennett Court of Appeal (2006)

Effect of injury on career prospects irrelevant to time limits

The claimant was stunned by an explosion in 1993 while on a military training exercise on Salisbury Plain. Within days he noticed a deterioration in his hearing. In 1994 his hearing was recorded by a doctor but it did not deteriorate noticeably until 2001 when the army downgraded him and prevented his deployment with his unit in Iraq. This was a shock to him affecting not only his career but also his self-esteem. He believed that his army career was blighted by his hearing impairment.

The Judge had allowed the claim to proceed. The Court of Appeal reversed this. Considering the case law on whether an injury is “significant” they decided that it depended on the seriousness of it and not its effect, let alone its subjectively perceived effect. What had to be considered was the reaction to the injury, as opposed to its possible consequences, of a reasonable person in the objective circumstances of the actual claimant, while disregarding his actual personal attributes such as his intelligence or aspirations. The claimant was plainly aware of the nature and extent of the damage to his hearing within a day or two of the injury.

Although the claimant lost, arguments on Section 33 for discretion had not been considered by the Judge and the case was therefore remitted for this issue to be decided.

McCoubrey -v- Ministry of Defence. Court of Appeal, 26 January 2007, Times Law Reports.