19 August 2013

Bennett v Southwell: Persuasive Structure and Word-Selection

Nothing legally extraordinary happens in Bennett v Southwell but it is an example of a good argument and technique. It shows how:
  1. Word-selection increases persuasiveness;
  2. The order in which those words are structured is important; and
  3. Neither (i) nor (ii) matter if the underlying logic is flawed.

High Court, Queen's Bench Division
[2013] EWHC 2382 (QB)
1 August 2013

Bennett
Claimant (C)
- and -
Southwell
Defendant (D)

The Honourable Mr Justice Griffith Williams

1. Facts

Griffith Williams J had to allocate blame in a traffic accident case. Two cars crashed on a bend on an unmarked country lane. Neither driver broke any law. Neither driver had a detrimental driving record. Nevertheless, Griffith Williams J held D primarily culpable, but held D and C responsible equally, after considering each party's contribution to the situation.

Griffith Williams J concluded thus because D drove half-a-metre over an imaginary half-way delineation. Without this extravagance, there would have been enough room for the two cars to pass safely. Moreover, C must have driven at a reasonable speed because had she exceeded 60–65 mph, cornering the bend at all would have been impossible. C was, however, distracted.

2. Argument

The reasons for the conclusion develop slowly throughout the case. However, Griffith Williams J's introduction--of facts and parties--makes his eventual conclusion clear early on because he constantly indicates favouritism towards C:
  1. In paragraph 1, Griffith Williams J states C has 'driven since she was 17 (…)', but not her age now. In contrast, he states D is '40 years old (…)'. This makes C appear young and innocent, while D is a grizzly old fellow with no innocence left. Griffith Williams J uses neutral language but images of D and C are still created in a certain way due to his word selection.
  2. Likewise, while C 'had not been involved previously in any road traffic accident', D more broadly 'has no driving convictions'. This suggests D's involvement in accidents that did not result in prosecution or adverse claims. (Aside: writing the facts in this apparently neutral way seems not to respect legitimate references to character; it is questionable whether such structure and word use would be acceptable in criminal evidence.1)
  3. In paragraph 5, C is described to suggest her familiarity with the relevant stretch of road precluded her guilt. This also sets up a later assertion in paragraph 5 about C's reluctance to drive fast 'on that road'. In contrast, there is no setting up for the fact that D drove at about the same speed.
  4. Throughout the case, C and D's cars are referred to. This is devious considering D drove a large vehicle. Repeatedly mentioning the vehicle-models reminds readers of every contemporary negative connotation attached to drivers of large vehicles. But the vehicles' sizes became irrelevant as soon as Griffith Williams J acknowledged both could have passed comfortably if each hugged their side of the road's edge. Repeatedly mentioning the vehicles serves only to reinforce D and C's images created by Griffith Williams J in paragraph 1.
  5. Paragraphs 10–13 explore words said by C after the accident. These words seem to implicate C but are given less discussion than seems deserved when one considers Griffith Williams J's word count dedicated to the parties' vehicle-models.
  6. Griffith Williams J again reinforces the impression of C's innocence in paragraph 22 when he points to her verbal 'acceptance (…) which is against her interests in some respects (…)'. Griffith Williams J writes this soon after exploring D's submissions, which are exposed and subsequently resiled. His structural technique creates a good contrast between innocence and deceit. The technique is similar to that in films where, in the Lord of the Rings for example, innocence is represented by idyllic and peaceful greenery, while its opposite is represented by harsh slate and fire. One is juxtaposed with the other to exacerbate and subtly contrast their emotive worth.
  7. Griffith Williams J acknowledges D's submissions about C's apparent causation but concludes--as the foregoing remarks suggest he would--that D acted unreasonably in cutting a corner on a country road; driving like this does not 'afford oncoming traffic as much space as possible (…) so a collision (…) [was] entirely foreseeable' (at [25]).

3. Observations

Note how an equal share of the responsibility does not preclude primary blameworthiness. It is acceptable for Griffith Williams J to have decided as he did even though it seems nonsensical for the two allocations to coincide. This is true even if judgments like this support statements like 'All (…) are equal but some (…) are more equal than others' There is no need to worry whether Griffith Williams J is a communist, though, because both allocations are logically consilient.2

To clarify, the reason for the apparent nonsensicality is the way language here is needed. 'Responsibility' needs to be attributed to enable the insurance companies to decide which of the two is a poor driver, and so know whom to charge a higher premium in future. 'Responsibility' also needs to be attributed to show which insurance company must pay what in this particular crash. Though saying it like this makes me wonder if there is a distinction after all.

One may compare this with another recent case: if the precedent here applied in R v Hughes, Mr Hughes may have been legally culpable for criminality X, even though only factually culpable for criminality Y (which the Supreme Court decided was not what the law said). This shows a slight inconsistency because the ratio in Hughes suggests that road law-norms should be specific, but Griffith Williams J's language creates ambiguity.

To view the situation the other way round, by applying Hughes to Bennett v Southwell, C cannot equally be responsible for a crash that D is primarily responsible for, because C's presence on the road does not make her liable for other wrongs committed on the same road. The problem with this application stems from each case's classification and nature: Hughes concerned criminal law and so excluded facets of tortious contributory negligence; whereas Bennett v Southwell concerns civil law, so Griffith Williams J is not barred from applying tortious contributory negligence. Therefore the instant, High Court judgment does not contradict the Supreme Court opinion.

Regardless, however fluent one's logic, one must be careful to avoid Griffith Williams J's ambiguity, which is easily avoidable by choosing better, alternative vocabulary. For instance chronologically listing D's causative action as just that--a causative action--rather than asserting that D had 'primary liability (…)' (at [26]) would have illustrated the case's contributory negligence aspect clearer than Griffith Williams J's words did.

4. Conclusion

It is obvious Griffith Williams J has spent his life being persuasive. The evidenced technique in this cases shows a respect for introducing ideas early, then building upon these throughout. In so doing the reader is already under certain impressions by the time a conclusion is offered. These impressions (ie that C is innocent, and D is wizened and crafty) lend to others' belief in one's final assertions. That these impressions are created matters little in Bennett v Southwell because contributory negligence spreads the blame equally. However, elsewhere, one's writing may be improved by using Griffith Williams J's technique, especially in university assessments where one may be asked to argue to support something incredible.


Endnotes
1 Criminal Justice Act 2003 pt 11 ch 1. Please note the myriad amendments to the statute's version in this link; click 'View outstanding changes' and the 'more' buttons to find details of these changes.
2 George Orwell, Animal Farm (Malcolm Bradbury introduction, Reprint, Penguin Classics 2000) 97 (changed from all caps). The ellipses replace 'animals', but the reference respects the quote's semantic integrity.


Created: 15 August 2013. Version 1.0.





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