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High Court considers contributory negligence where both drivers embarked upon dangerous manoeuvres

  • 12 February 2021 12 February 2021
  • UK & Europe

  • Insurance & Reinsurance

The High Court recently considered issues of the extent of contributory negligence following a collision between a car and a scooter. The decision offers guidance on how the causative potency of the drivers' actions will impact the findings of the Court when approaching contributory negligence. In this instance, the Defendant car driver had failed to notice the Claimant's scooter approaching from the opposite direction when executing a right turn on a single carriageway. However, the Claimant had been speeding at twice the speed limit and had just undertaken a dangerous manoeuvre in overtaking a van. The Court held that the Claimant was 80% contributory negligent for the injuries he sustained.

High Court considers contributory negligence where both drivers embarked upon dangerous manoeuvres

Kyriacou v Finch (2021) 1 WLUK 359

Background

The Claimant was travelling at over 50mph down a single carriageway on his scooter.  He overtook a van when approaching a junction. The Defendant was heading in the opposite direction, travelling at around 14mph. As the Defendant started to make a right turn at the junction, he collided with the Claimant's scooter.

The Defendant stated that he had not seen the Claimant’s scooter until after the accident; as he approached the junction he looked ahead and only saw the van. The Defendant said he would not have turned if he had seen the Claimant's scooter, but admitted he had cut the corner.

The Claimant argued the Defendant was negligent in cutting the corner and should have seen his scooter. He submitted primary liability was established and any contributory negligence should be assessed at 60-66%. The Claimant did not give evidence regarding the allegation of drugs in his system.

The Defendant submitted the accident was due primarily to the Claimant's negligent driving. Alternatively, the Defendant submitted that if he was liable in the first instance then the Claimant's contributory negligence should be assessed in the range of 85-90%.

Expert evidence

Expert evidence was crucial in determining the specific circumstances. A joint expert report concluded that the Claimant was travelling at around 55mph at the time of the collision, despite not having a licence to drive the scooter. In addition, toxicology evidence showed that he might have been under the influence of drugs.

It was agreed by the experts that the Claimant's headlights would have been visible to the Defendant when the Claimant was overtaking the van, and that if the Defendant was looking ahead before he turned he should have seen the scooter. However, the experts held that if the Claimant had been travelling at 37mph or less the accident would not have happened.

Outcome

It was held that whilst the Defendant was partly responsible a large proportion of culpability lay with the Claimant and he was found to be 80% contributory negligent.

The Defendant had been negligent for failing to keep a proper lookout – the failure to register the scooter was negligence. The Defendant was also negligent in cutting the corner, meaning that he had been in the wrong lane for longer than was necessary. Primary liability was established because the accident would not have occurred but for those breaches of duty to the Clamant as another road user.

However, the considerable elements of contributory negligence could not be ignored.  The Court found on the balance of probabilities that the Claimant had cannabis in his blood which inhibited his ability to drive.  The Claimant had been driving at twice the speed limit, and was driving dangerously in overtaking the van. Attempting the overtaking manoeuvre in close proximity to a junction was also found to have compounded the danger.

What can we learn?

  • The Court considered the issue of moral blameworthiness in some detail and the issue of respective causal potency of the risks undertaken by both Claimant and Defendant. The Court found that the Claimant had taken substantial risks. It was acknowledged the Defendant had also taken risks but these were relatively fleeting, and could not be considered on the same magnitude as the Claimant’s actions, which were both more dangerous and over a longer period.
  • The issue of "looming" was considered. This is the threshold at which is possible to judge the speed of an approaching vehicle. The Claimant was found to have been in the Defendant's sight line for three seconds. The expert evidence advanced by the Claimant regarding looming was preferred; the Claimant's scooter was within the looming threshold so the difficulty that might arise when a vehicle is beyond the looming threshold did not arise.
  • The Highway Code prohibits cutting corners and the Defendant accepted that it was dangerous. The Court found that the Defendant's driving had fallen below the standard expected of an ordinary prudent motorist.

     

End

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