|
In the interest of being fair the appointment of liability in every case of negligence has its own individual considerations of proportionality and here are some examples of how the courts have dealt with such individual cases.
________________________________
Apportionment of liability
In Nance v British Columbia Electric Rly Co Ltd1, Lord Simon said that all that is necessary to establish a defence of contributory negligence is to show that the injured party did not, in his or her own interest, take reasonable care of him or herself and contributed, by want of care, to his or her own injury.
Set out below are some cases on duty of care and apportionment of liability in the hopes that they may be of some interest. However the reader is reminded of the dicta of Lord Steyn in Jolley v Sutton London Borough Council—
'First in this corner of the law [contributory negligence] the results of decided cases are inevitably fact sensitive. Both counsel nevertheless at times invited Your Lordships to compare the facts of the present cases with the facts of other decided cases. That is a sterile exercise. Precedent is a valuable stabilising influence in our legal system. But comparing facts and outcomes of cases in this branch of the law is misuse of the only proper use of precedent, viz, to identify the relevant rule to apply to the facts as found.'
In NSP Enterprises v Main Line Group Ltd it was held that motorists must allow themselves more stopping time when driving in bad weather. In Houston v Butler it was held that a driver does not have to slow down just because he or she sees somebody standing at the road side as if to cross, but must keep his or her eye on that person just in case he or she begins to cross. As the defendant had not done the latter he was held 25 per cent responsible for hitting the claimant while she was crossing the road (the claimant, whose blood alcohol concentration was three times the legal limit, was held 75 per cent liable for crossing while it was unsafe to do so). In Barlow v Entwistle the Court of Appeal held that a driver who saw three grown men larking about on the roadside was not under any duty to anticipate that one of them might suddenly run across the road. It is otherwise in the case of children and in such a case there is no contributory negligence, see Blinkhorn v Hall. In Cullen v Coggin it was held that a motorist going through a green light was under no duty to look out for drivers who might go through lights at red. In Cross v Smith the High Court held that there was no contributory negligence by not wearing a seat belt where one is not fitted. In Hockney v DW Bennett & Sons Ltd9 the Court of Appeal upheld the apportionment of blame as follows. The first defendant 25 per cent, the second defendant 15 per cent and the third party 60 per cent. Late at night, the first defendant's employee had, as a result of another accident caused by his negligence, ended up parked, with no lights on his lorry, half on and half over the hard shoulder on a duel carriageway (the A2) at Swanscombe. This accident was seen by the second defendant who slowed down to 25 miles per hour and then pulled out to overtake the lorry but failed to look in his mirror with the result that he collided with the third party who was travelling in the fast lane at 70 miles per hour. The latter had taken no action when he had both seen the accident, was aware of the slow lane being blocked and of the second defendant signalling that he was going into the fast lane. In Richards v Quinton in order to get out of his house and on to the roadway, the claimant had to cross the pavement and a cycle track and had very little vision of those approaching from the left on that path. The appellate court held that he should have stopped half way across the cycle path as well as at its beginning because of the restricted view, but that nevertheless the cyclist was 25 per cent responsible because he should likewise have stopped when he saw the car stationary at the edge of the track. The fact that the cyclist was going against the directions of the arrows on the path was irrelevant as a lot of cyclists did just that.
In Parsons v Murke and Pope the High Court held that a motorist was guilty of negligence if he or she did not follow the advice of the Highway Code and allow sufficient room in case a cyclist suddenly moved in towards the centre of the road (eg because of wind). In Marshall v Lincolnshire Road Car Co the majority of the Court of Appeal (Laws LJ and Jacob J) held that a 'bus driver who opened the doors of his vehicle while it was in motion owed no duty of care to a passenger who then alighted from the moving bus, or alternatively there was a 100 per cent contributory negligence. It is submitted that much more preferable is the dissenting judgment of Kennedy LJ, as after all the doors were fitted in order to prevent passengers from getting off a moving vehicle. In Ailkins v Wjnn and Jones the Court of Appeal held a front-seat passenger who had held an infant in her arms was 20 per cent liable for the injuries suffered by that child in a road accident. She should have been placed in the child seat in the rear of the car. Likewise in Jebson v Ministry of Defence it was held that the defendant owed a duty of care to drunken soldiers who travelled in their lorries, in that case to one who had climbed on to its roof while the vehicle was in motion, although there was also held to be 75 per cent contributory negligence on the part of the defendant.
In Billington v McNamara, the defendant stopped in the inside lane after his van had turned on to a main road. A cyclist did not see the parked unlit trailer until it was too late for her to avoid a collision. The appellate court held the lorry driver to have been negligent in stopping where he did but there was 70 per cent contributory negligence. In Lee v Williams, the appellate court held that a pedestrian or peddle cyclist to be more vulnerable than a car driver, so that it found the latter to have been 60 per cent liable for an accident caused by him turning left and failing to keep a proper lookout, while there was also 40 per cent contributory negligence by the cyclist, who had been riding on the pavement and had crossed the road at a junction where the accident had occurred.
In Baker v Market Harborough Industrial Co-operative Society Ltd, Wallace v Richards (Leicester) Ltd, the Court of Appeal held that where two vehicles collide in the centre of the road, and there were no witnesses who saw and could remember what had happened, then liability should be apportioned 50/50. That judgement was followed in Cook v Hatton. In Cook v Thorne, the claimant was a passenger in a car driven by the second defendant. He had drunk too much and was feeling sick so the driver stopped but left his headlights illuminated. The claimant got out of the car and while being sick in the road, was hit by the first defendant, who was driving an on-coming car, was blinded by the headlights but did not slow down. Court of Appeal held the claimant 30 per cent liable, because he had stood in the road; and as between the two defendants, the first was 70 per cent liable as he should have slowed down once he began to be dazzled and the other defendant was 30 per cent liable for not having dipped his lights once he had stopped his car. In Arnot v Spake the appellate court held that a motor cyclist who had driven too fast so that he could not stop within the distance that was visible was 100 per cent responsible for the collision with a lorry pulling out of a farm track on a left hand bend. He should have travelled at a speed that would allow him to pull up safely if an obstruction in front of him were suddenly to come into view. In NSP v Mainline Ltd it was held that in bad weather a driver should allow more time to stop than in good conditions. Cullens v Coggins held that a driver going through a green traffic light owes no duty of care to look out for motorists who jump the lights and go through on red. In Grealis v Opuni it was held that mere failure to obey the Road Traffic Act (in that case in relation to speed) was not ipso facto negligence.
In Walker v Greenwood as the lights turned to green the defendant overtook a very large stationary lorry which had stopped at the lights and obscured his view of the crossing. He did not slow down and hit the two claimants. The defendant was held liable because the large lorry remaining stationary should have made him wary of the possibility of their being somebody on the crossing. The claims were held to have been guilty of 80 per cent contributory negligence because they had started to cross even though the lights on the pedestrian crossing were against them.
In Cooper v Floor Cleaning Machines Ltd the trial judge did not know whom to believe. There was clearly a collision between the claimant's and the defendant's vehicles, but their accounts of its cause and location varied. The appellate court said that the defendant used the same the route every day and, unless he had made a serious error, he would not have been where the claimant had alleged the accident had occurred. Accordingly his account should have been accepted.
In Greatorex v Greatorex Cazalet J held that a rescuer could only claim for pure psychiatric injury if that had been caused by the physical damage to which he had exposed himself and not merely by what he had seen at the scene of the road accident. Likewise in Fagan v Goodman Turner J held that a motorist who suffered physiological injury through seeing a road accident but which never put her in any physical danger had no cause of action. Her damage was too remote.
In Casey v Carwtright the CA laid down the procedure to be followed if a defendant wished to submit that the low velocity at the time of the collision could not have caused the injury or damage alleged by the claimant.
In Goddard v Greenwood the appeal court held it was negligent to overtake a large stationary lorry at traffic lights which had just turned to green. This was because the vision of the crossing was hidden by the lorry which had not, for some reason such as pedestrians crossing, moved when the lights changed. As the claimant started to cross when the red light was against her, there was 80 per cent contributory negligence. In Grave v Tanner the defendant was in the left had lane of a duel carriageway as she was going round a roundabout. She missed her turning and continued all the way round. She gave no indication of this. A cyclist did not think she was not going to turn off the last exit and cut across causing an accident. The appellate court held each driver 50 per cent liable. Nobody would normally expect a driver to go all the way round a roundabout.
In Rouse v Squires, an articulated lorry skidded and came to a halt, causing it to obstruct the nearside and centre lanes of the northbound carriageway of the M1. The lorry driver admitted negligence and the Court of Appeal held that he was responsible for all accidents caused by the obstruction, subject to contributory negligence by drivers who were going too fast so that they could not stop in time or who were not keeping a proper lookout. The rationale was that but for the lorry's driver's negligence, there would have been no accident.
In Grealis v Opuni a motor cyclist cut a right hand corner and collided with a car going in the opposite direction. The car was travelling at between 37 and 39 mph in a 30 mph speed limit. If he had kept within the speed-limit zone, he probably would have been able to pull up in time and avoid a collision. The trial judge found for the defendant. The CA held that the car driver was under a duty to obey the speed limit and he was liable in damages for not doing so. However, as the cyclist had entered the junction when it was unsafe to do so, he was 80% liable for the accident.
In Farley v Buckley Kay LJ stated:
'Many road traffic accidents involve collisions between two vehicles one of which has turned right from a minor road onto a major road along which the other was proceeding. In the great majority of such cases the driver who comes from the minor road attracts most if not all of the blame. [Here the trial judge] held that, in the particular circumstances of this case, the negligence was entirely that of the claimant in the action, who had been riding his motor scooter along a major road when it collided with the car of the defendant as he turned right out of a minor road. The reason for this was explained by Pill LJ: 'The judge was entitled to regard his conduct in overtaking a slow moving line of traffic at 30 miles an hour on an urban street as 'reckless' and his lack of anticipation as showing a 'serious want of care'. My conclusion does not detract from or diminish the care to be expected from a driver turning right, as Mr Buckley was, in circumstances such as these. Great care is required. The judge's finding that Mr Buckley emerged from the minor road at 'about 5-8 miles per hour' was based on a statement of Mr Nieland, the driver of a refuse wagon, which was not challenged in cross-examination, though contrary to Mr Buckley's evidence. The finding is difficult to reconcile with her finding that Mr Buckley was proceeding 'slowly and cautiously', was 'moving at a slow speed' and moved forward 'only a short distance, if at all' after the collision, and with her overall assessment of Mr Buckley's conduct. This case is not authority for the proposition that emerging from a minor road at 5 to 8 miles an hour, in circumstances such as the present, is generally an acceptable manoeuvre.'
In Galli-Atkinson v Seghal the Court of Appeal held that a mother was within the class of those who could claim damage for psychiatric injury. She was driving to collect her daughter when she came upon an accident on the road and learnt that her daughter had been killed in it.
In Eagle v Chambers1 the Court of Appeal held that it would be rare for a pedestrian injured in a road accident to be held more liable for its causation than the motorist involved, unless the pedestrian had suddenly moved into the path of an on-coming vehicle. The court quoted with approval the dicta of Latham LJ in Lunt v Khelifa2: 'The court has consistently imposed upon the drivers of cars a high burden to reflect the fact that the car is potentially a dangerous weapon.'
It was for that reason in Eagle's Case that the contributory negligence was reduced on appeal from 60 per cent to 40 per cent. There the claimant was in a merry state, walking down the outside lane of a duel carriageway, despite requests for her to walk on the pavement. She was hit by the defendant's car. He accepted that he was the worse for drink (his breath alcohol level being 31 µg). The judge found as a fact that if he had been keeping a proper lookout, he could have avoided the accident.
In Adjei v King the claimant was run over while crossing the road. If either of the parties had been keen keeping a proper look-out, the accident would not have occurred, which led to the judge finding 50 per cent contributory negligence. The Court of Appeal held that motorists have a greater responsibility for road safety and reduced the contributory negligence to 40 per cent. Likewise in Green v Bannister the court dismissed an appeal against the finding of liability by a driver of a car which, while reversing down a narrow street, run over the claimant who was lying drunk in the road. She should have checked her wing mirrors as well as looking over her shoulder. The court said that there was no appeal against apportionment but prima facie a finding of 60 per cent appeared to be too generous to the defendant.
In Keyse v Metropolitan Police Comr5 the Court of Appeal held that drivers of emergency vehicles were entitled to drive their vehicles on the basis that pedestrians would recognize their warning lights and sirens and give them priority by keeping out of their paths.
In Goundry v Hepworth, the defendant appealed against the decision holding her liable in damages to the claimant, who at the age of four had run into the path of a car driven by the defendant. The trial judge's conclusion was that 'some small degree of negligence must attach to the defendant'. He stated that he did not need to assess the degree of that negligence in percentage terms. The facts were that in good light, a group of pedestrians crossed to the white line in the middle of the road and waited for the traffic to pass from their right hand side. Unfortunately, the claimant then ran into the path of the defendant's car. The appeal was allowed. In the words of Hallett LJ:
'What is the duty of an ordinary, prudent motorist . . . on seeing a group of people which includes young children standing in the middle of the road waiting to cross? I am not persuaded that the duty on a motorist in the defendant's situation was to stop and allow the group to cross in front of her, as the learned judge found in the concluding words of his judgment. There was . . . nothing unruly about this group. The group as a whole was standing calmly waiting for the defendant's car to pass. The car in front of her had passed the group safely . . . To place on a motorist . . . a duty to stop and wave the group across is, on the facts of this case, a counsel of perfection. It is imposing too high a duty, even for a motorist driving a potentially lethal weapon.'
In Grealis v Opuni the Court of Appeal held that it was negligent to have exceeded the speed limit, when driving within it would have prevented the accident occurring.
In Puffett v Hayfield, the Court of Appeal held that a judge could find that the defendant was driving at an unsafe speed without having to specify what a safe speed was.
In Deosaran v Barrow3 the Privy Council held that once a judge had found that a motorcyclist was so close to the point of impact with a vehicle executing a u-turn that he could not have avoided the resultant collision, there could be no basis for finding contributory negligence on the part of the cyclist.
In Tomkins v Royal Mail a driver who parked a trailer illegally (1) without lights, (2) facing the wrong way and (3) on a double yellow line, was held to be 35% responsible when the claimant failed to see the trailer and his car went underneath the trailer.
Whittle v Bennett arose out of a serious accident on the A25 which occurred when a Ford Mondeo motorcar driven by the appellant, performed a U-turn from the nearside of the carriageway notwithstanding the presence or near approach of two Vauxhall Nova motor cars, the second of which was driven by the respondent, which had been travelling behind him. The first Nova managed to pass the Mondeo before it had advanced too far into its manoeuvre. The respondent's Nova, however, struck the car at about the midpoint of its offside. The appellant was catastrophically injured and brought his claim on the basis that the respondent was driving too fast and too close to the other Nova. The CA rejected the argument that the defendant was ipso facto negligent because he had been travelling about 8 mph over the limit of 50 mph because even at that latter speed the accident would have occurred.
________________________
|
Login
Register
FAQ
