Mansfield and Another v. Weetabix LTD. and Anothe PDF

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Date and Time: Monday, 17 May, 2021 6:52:00 AM MYT Job Number: 143960867

Document (1) 1. MANSFIELD and Another v. WEETABIX LTD. and Another [1998] 1 WLR 1263, [1998] 1 WLR 1263 Client/Matter: -NoneSearch Terms: mansfield v weetabix Search Type: Natural Language Narrowed by: Content Type UK Cases

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Mansfield v Weetabix Ltd Overview

| [1998] 1 WLR 1263, [1998] RTR 390,

| [1997] Lexis Citation 2009

MANSFIELD and Another v. WEETABIX LTD. and Another [1998] 1 WLR 1263 [COURT OF APPEAL] Leggatt and Aldous L.JJ. and Sir Patrick Russell 1997 Feb. 28; March 26 Negligence — Foreseeability of risk — Causation — Driver unaware of disabling condition gradually rendering him unfit to drive — Accident caused by driver's disability — Whether driver at fault — Whether negligent A lorry-driver employed by the first defendants was unaware that he suffered from malignant insulinoma, a condition that resulted in a hypoglycaemic state which starved the brain of glucose so that it was unable to function properly. In the course of a 40-mile journey he was involved in two incidents of driving erratically and in a minor accident with another vehicle. Subsequently he failed to negotiate a bend and crashed into the plaintiffs' shop causing extensive damage. In an action by the plaintiffs for damages the judge found that it was unlikely that the driver had completely lost consciousness before that accident, that his ability to drive properly was impaired because of hypoglycaemia and that he would not have continued to drive if he had appreciated or was aware that his ability was impaired, but concluded that he had not lost control of the lorry completely so that the defendants were negligent and liable for the loss and damage to the plaintiffs. On appeal by the defendants: —

Held , allowing the appeal, that there was no reason in principle why a driver who was involved in an accident caused by a disabling event should not escape liability where the disabling event was not sudden, but gradual, provided that he was unaware of it; that the standard of care such a driver was obliged to show to other road users was that which was to be expected of a reasonably competent driver unaware that he was or might be suffering from a condition that impaired his ability to drive; that to apply an objective standard in a way that did not take account of such a condition would be to apply a test of strict liability; and that, accordingly, since the first defendants' driver did not know and could not reasonably have known of his infirmity which caused the accident, he was not at fault and was not negligent (post, pp. 1267G–H, 1268D–E). Dictum of Neill J. in Roberts v. Ramsbottom [1980] 1 W.L.R. 823, 832, disapproved. Per curiam. In criminal cases the question is whether the defendant was driving, and hence it is necessary for the defendant, if he is to escape conviction, to show that he was in a state of automatism. Since that is not the test in civil cases, consideration of criminal cases can only introduce confusion (post, pp. 1266G, 1268H–1269A). Decision of Collins J. reversed. The following cases are referred to in the judgment of Leggatt L.J.: Attorney-General's Reference (No. 2 of 1992) [1994] Q.B. 91; [1993] 3 W.L.R. 982; [1993] 4 All E.R. 683, C.A.

Page 2 of 6 MANSFIELD and Another v. WEETABIX LTD. and Another [1998] 1 WLR 1263 Canada (Attorney-General) v. Connolly (1989) 64 D.L.R. (4th) 84 Nettleship v. Weston [1971] 2 Q.B. 691; [1971] 3 W.L.R. 370; [1971] 3 All E.R. 581, C.A. Reg. v. Spurge [1961] 2 Q.B. 205; [1961] 3 W.L.R. 23; [1961] 2 All E.R. 688, C.C.A. [*1264] Roberts v. Ramsbottom [1980] 1 W.L.R. 823; [1980] 1 All E.R. 7 Snelling v. Whitehead, The Times, 31 July 1975, H.L.(E.) Waugh v. James K. Allan Ltd. [1964] 2 Lloyd's Rep. 1, H.L.(Sc.) The following additional cases were cited in argument: Holmes v. Mather (1875) L.R. 10 Ex. 261, D.C. Reg. v. Gosney [1971] 2 Q.B. 674; [1971] 3 W.L.R. 343; [1971] 3 All E.R. 220, C.A. The following additional cases, although not cited, were referred to in the skeleton arguments: Broome v. Perkins [1987] R.T.R. 321, D.C. Cambridge Water Co. v. Eastern Counties Leather Plc. [1994] 2 A.C. 264; [1994] 2 W.L.R. 53; [1994] 1 All E.R. 53, H.L.(E.) Donoghue v. Stevenson [1932] A.C. 562, H.L.(Sc.) Glasgow Corporation v. Muir [1943] A.C. 448; [1943] 2 All E.R. 44, H.L.(Sc.) Hill v. Baxter [1958] 1 Q.B. 277; [1958] 2 W.L.R. 76; [1958] 1 All E.R. 193, D.C. Jones v. Dennison [1971] R.T.R. 174, C.A. Ng Chun Pui v. Lee Chuen Tat [1988] R.T.R. 298, P.C. Read v. J. Lyons & Co. Ltd. [1947] A.C. 156; [1946] 2 All E.R. 471, H.L.(E.) Reg. v. Isitt [1978] R.T.R. 211, C.A. Watmore v. Jenkins [1962] 2 Q.B. 572; [1962] 3 W.L.R. 463; [1962] 2 All E.R. 868, D.C.

APPEAL from Collins J.

By a re-amended writ, dated 25 September 1990, the plaintiffs, David Mansfield and Hazel Jean Mansfield, now deceased, claimed against the defendants, Weetabix Ltd. and Anne Catherine Tarleton, the personal representative of Terence Mervyn Tarleton, damages and interest for damage and loss to their off-licence and shop premises at Bon Marche Stores, Upper Tean, Stoke-on-Trent, Staffordshire, and to its contents caused by the negligence of the first defendants through their servant or agent, Terence Mervyn Tarleton, in the control and driving of a Volvo motor lorry, owned by the first defendants, on or about 1 November 1984 when he failed to negotiate a bend in the road adjacent to the plaintiffs' premises and collided with those premises. The defendants denied negligence contending that at the time of the accident Terence Mervyn Tarleton was, without knowing it, suffering from insulinoma which produced impairment and/or loss of consciousness. Collins J. gave judgment for the plaintiffs on 17 November 1995. By notice of appeal dated 11 December 1995 the defendants appealed on the grounds that (1) the judge erred in law in holding that the driver of the vehicle was negligent in circumstances where his ability to drive was impaired by the onset of a completely unexpected and very rare type of hypoglycaemic episode and, further, where his faculties of judgment as to the quality of his driving were similarly impaired; (2) the judge misdirected himself by holding that

Page 3 of 6 MANSFIELD and Another v. WEETABIX LTD. and Another [1998] 1 WLR 1263 the driver was negligent because (a) the onset of the episode was gradual rather than sudden, (b) the driver retained some physical control of the vehicle and (c) his driving fell below the standard of a reasonable motorist not so afflicted, even though the driver was not and, because of the episode, was incapable of being aware thereof; (3) the judge further misdirected himself that it was only where the driver's impairment resulted in a total loss of control, so that he could be said not to be driving, that driving in a manner below the standard of the [*1265] reasonable motorist not so afflicted would not establish the requisite element of negligence, namely fault; (4) having found that the driver was not to blame, the judge ought to have acquitted him of negligence, and that in order to constitute the tort of negligence there had to be some degree of blameworthiness in the driver's conduct; (5) although the judge found that the driver was at fault, he found no fault in any recognised sense of the term, and in effect imposed absolute liability upon a motorist in the circumstances; and (6) the judge in effect adopted a test of liability which was damage based rather than fault based, even though liability in negligence had never been damage based. The facts are stated in the judgment of Leggatt L.J. Piers Ashworth Q.C. and Patrick Green for the defendants. Peter Andrews Q.C. and Mark Anderson for the plaintiffs. Cur. adv. vult. 26 March. The following judgments were handed down. LEGGATT L.J. It is over 12 years since on 1 November 1984 a 38-ton lorry belonging to the first defendants, Weetabix Ltd., failed to take a sharp bend in the village of Upper Tean near Stoke-on-Trent in Staffordshire and crashed into the shop belonging to the plaintiffs, Mr. and Mrs. Mansfield, causing extensive damage. At the wheel of the lorry was Mr. Terence Tarleton, who has since died, as has Mrs. Mansfield. Although he had no reason to suspect it, Mr. Tarleton had malignant insulinoma. That resulted in a hypoglycaemic state in which the brain was starved of glucose and so was unable to function properly. That was what caused the accident. The second defendant is Mr. Tarleton's personal representative. On 23 November 1995 Collins J. gave judgment for the plaintiffs, holding the defendants liable to them in negligence. Against that judgment the defendants now appeal.

The judge found that Mr. Tarleton had not had much to eat on the day of the accident. That may have helped to induce his state by lowering his blood sugar level. In the course of a journey of 40 miles before the accident Mr. Tarleton was involved in three distinct incidents. The first happened at about 2.45 p.m. when he drove erratically, albeit at a moderate speed, along a dual carriageway. The second incident occurred five or ten minutes later when he collided with the rear of a trailer pulled by the vehicle in front of him. The police officer who went to the scene thought that he was behaving strangely. The third incident happened at about 3.30 p.m. when for no good reason the nearside wheels of the lorry were seen to mount the kerb before returning to the roadway. Immediately before the lorry hit the shop it had been travelling unexceptionably through the village, but as it approached the bend it was going too fast. Mr. Tarleton was seen to be wrestling with the steering wheel in an attempt to negotiate the bend, and a short skid mark left in the roadway showed that he had braked at the last moment. The judge concluded that it was highly unlikely that Mr. Tarleton had completely lost consciousness at any stage before the accident occurred but that his ability to drive properly was impaired because of hypoglycaemia. The judge added in his judgment: “I should say that there was also evidence that Mr. Tarleton was usually a very careful and sensible driver and was a man who was [*1266] conscientious and would not have continued to drive if he had appreciated and was conscious that his ability was impaired because of some illness or because of some condition which was affecting him.”

Page 4 of 6 MANSFIELD and Another v. WEETABIX LTD. and Another [1998] 1 WLR 1263

Mr. Tarleton remembered nothing between about 1 p.m. when his journey started and 3.40 p.m. when the accident happened. The judge explained that “one of the peculiarities about the condition is that notwithstanding that an individual is impaired in the sense that he is unable to rationalise, to form judgments, as well as he ought, he does not appreciate it.” Physical symptoms, which the judge referred to as “signposts” to the falling blood sugar level, do not, or may not, exist. In his judgment the judge evidently accepted the evidence of an expert witness that: “he should not be blamed in any way for continuing to drive, because due, perhaps, to amnesia, a lack of appreciation of the significance of what had occurred, he would not have realised that he was in a less than fit state to continue to drive, and, accordingly, he did continue. He clearly was in a state whereby his brain was able to function to a sufficient extent that he could steer the lorry, he could avoid any other traffic, he could manoeuvre it round bends, he could drive it in the correct direction towards the depot where he was intending to go, and he could slow down and speed up as appropriate. Accordingly his cognitive functions were in working order and the messages were going to his hands, to his arms, to his feet, so as to enable him to co-ordinate properly in order to drive the lorry.”

In short, Mr. Tarleton had an impaired degree of consciousness because of the malfunction in his brain caused by the deficiency in glucose. The judge followed Roberts v. Ramsbottom [1980] 1 W.L.R. 823. In it a motorist was involved in an accident when unknowingly he was suffering from a stroke and was unaware of his unfitness to drive. Neill J. considered several criminal cases about automatism before saying, at p. 832: “I am satisfied that in a civil action a similar approach should be adopted. The driver will be able to escape liability if his actions at the relevant time were wholly beyond his control. The most obvious case is sudden unconsciousness. But if he retained some control, albeit imperfect control, and his driving, judged objectively, was below the required standard, he remains liable.”

He gave no reason for being so satisfied. In my judgment, consideration of criminal cases can only introduce confusion. In them the question is whether the defendant was driving. Hence the need, if the defendant is to escape conviction, to show that he was in a state of automatism. In civil cases that is not the test. So Neill J. erred when he considered criminal and civil cases indifferently, and assumed that to escape liability in a civil case a defendant must show that he was in a state of automatism. Collins J. ought not to have derived support for his approach from the fact that Roberts v. Ramsbottom was cited with approval in Attorney-General's Reference (No. 2 of 1992) [1994] Q.B. 91. Nor was he entitled to conclude from Reg. v. Spurge [1961] 2 Q.B. 205 that it is only when a sudden disabling event occurs that a driver will escape liability. Nevertheless Roberts's case [1980] 1 W.L.R. 823 was, in my judgment, rightly decided on the alternative ground that the defendant “continued to drive when he [*1267] was unfit to do so and when he should have been aware of his unfitness:” see pp. 832–833. The other case upon which Collins J. principally relied was Nettleship v. Weston [1971] 2 Q.B. 691, in which this court held that the duty of care owed by a learner driver to her instructor is to be judged by the same objective standard as that owed to passengers and other road users by qualified drivers. But, although this case shows that there should be no relaxation in the standard of care, it does not refer to cases in which a driver is unaware that he is subject to a disability. The judge concluded in his judgment that Mr. Tarleton “did not appreciate that he was driving inefficiently, it was happening because of the low blood sugar level. None the less, he has surely to be judged, just as the learner driver or the inexperienced driver has to be judged, by the standard of the reasonable experienced driver sound in wind and limb. And it seems to me that the policy of the law in requiring that there should be liability unless there is this total loss of control, total loss of consciousness, is correct.”

Page 5 of 6 MANSFIELD and Another v. WEETABIX LTD. and Another [1998] 1 WLR 1263 It seems that in this passage the judge was equating loss of control with loss of consciousness. Loss of control may or may not be accompanied by loss of consciousness. In an earlier passage in his judgment the judge had said: “The position is, as I understand it, that if the driver suffers a sudden, unexpected, onset of some condition which then and there affects his ability to drive, and because of that sudden onset he has an accident which he is unable to prevent by the exercise of all reasonable care and skill, there is no liability, because it is that sudden disabling event that causes the accident in question.”

I am not sure what the judge meant by his reference to “the exercise of all reasonable care and skill” in the circumstances. For the plaintiffs Mr. Andrews advanced only one argument in support of the judge's approach. He repeated it consistently and persistently: a driver who is involved in an accident in circumstances such as these will only escape liability if his actions at the time of the accident were wholly beyond his control. Thus if he has partial control he will remain liable. Confronted in argument by examples of the odd results that this might produce, Mr. Andrews sought to justify the approach by contending that any other method would result in uncertainty. He submitted that Mr. Tarleton's mind went with his acts when he crashed, because his limbs retained some element of control over his driving; and he was at fault because objectively his driving fell below the required standard. There is no reason in principle why a driver should not escape liability where the disabling event is not sudden, but gradual, provided that the driver is unaware of it. A person with Mr. Tarleton's very rare condition commonly does not appreciate that his ability is impaired, and he was no exception. Although by the time of trial Mr. Tarleton was dead, and there was no direct evidence of his actual state of awareness, the judge held that he “would not have continued to drive if he had appreciated and was conscious that his ability was impaired.” Of course, if he had known that it was, he would have been negligent in continuing to drive despite his knowledge of his disability. So also if he ought to have known that he was [*1268] subject to a condition that rendered him unfit to drive: Waugh v. James K. Allan Ltd. [1964] 2 Lloyd's Rep. 1. The judge cited Canada (Attorney-General) v. Connolly (1989) 64 D.L.R. (4th) 84, in which a policeman was injured when a driver drove his car off while the policeman's arm was pinned in the window. The driver was held not liable in negligence, since by reason of severe mental disorder he was not capable of foreseeing the harm that resulted from his acts. Collins J. said in his judgment: “With great respect it seems to me that to apply the objective reasonable person test at the stage of assessing the standard of care, but to apply the different foreseeability test is effectively to apply an overall test which depends upon the individual defendant in question.”

I assume that the judge meant “not to apply the objective … test.” Similarly, when Mr. Ashworth for the defendants cited the same case in this court he seemed like the judge to draw no distinction between the test for whether a duty of care exists and the test (by applying a standard of care) for whether there is breach of the duty. In Connolly's case the judge decided that because the driver could not foresee the risk of harm there was no duty of care. But the evidence here does not permit the conclusion that Mr. Tarleton was in such a state that he did not foresee that if his lorry collided with the shop it would cause damage. The case is therefore of no assistance. In my judgment, the standard of care that Mr. Tarleton was obliged to show in these circumstances was that which is to be expected of a reasonably competent driver unaware that he is or may be suffering from a condition that impairs his ability to drive. To apply an objective standard in a way that did not take account of Mr. Tarleton's condition would be to impose strict liability. But that is not the law. As Lord Wilberforce said in Snelling v. Whitehead, The Times, 31 July 1975 (1), a transcript of the speeches in which is before the court: “The case is one which is severely distressing to all who have been concerned with it and one which should attract

Page 6 of 6 MANSFIELD and Another v. WEETABIX LTD. and Another [1998] 1 WLR 1263 automatic compensation regardless of any question of fault. But no such system has yet been introduced in this country and the courts, including this House, have no power to depart from the law as it stands. This requires that compensation may only be obtained in an action for damages and further requires, as a condition of the award of damages against the [driver], a finding of fault, or negligence, on his part … it is … not disputed that any degree of fault on the part of the [driver], if established, is sufficient for the [plaintiff] to recover. On the other hand, if no blame can be imputed to the [driver], the action, based on negligence, must inevitably fail.”

In the present c...