PROVING THINGS 226: PROVING CONTRIBUTORY NEGLIGENCE (AND A WEBINAR ON THAT VERY SUBJECT…)

There is often very little attention paid to judgments in relation to contributory negligence. Commentators tend to concentrate, on the whole, on primary liability. If considered at all contributory negligence is often an after thought – a “finding on the facts”.  The judgment of HHJ Salmon (sitting as a High Court Judge) in MacDonald v Ms Amlin Corporate Member Ltd [2023] EWHC 526 (KB) provides interesting reading in relation to the issue of contributory negligence.  There is a detailed addendum to the judgment which sets out of the reason for the finding of contributory negligence and its rationale.  This is a result of the defendant’s assertion that the initial judgment did not give sufficient reason for the decision on apportionment.

“The Act requires the court to look at the claimant’s share of responsibility for the damage, assessing the causative contributions, and in the light of that assessment, but not confined to it, to decide what is a just and equitable apportionment and in so doing the court is entitled to take into account the extent and degree that the claimant has departed from the reasonable standards expected of him”

WEBINAR ON CONTRIBUTORY NEGLIGENCE: LEARNING FROM RECENT CASES: 5th JUNE 2023

On the 5th June 2023 I am presenting a webinar: Contributory Negligence: Learning from Recent Cases.  This looks at this case and other cases over the past two years that highlight key areas of contributory negligence in occupier’s liability, employer’s liability and road traffic cases.

Booking details are available here.

THE CASE

The claimant was seriously injured in a road traffic accident.  He was riding his scooter in the Limehouse Link Tunnel when it collided with the rear of a lorry that was parked in the lorry. The judge found that lorry driver to have been negligent.  The judge found that the defendant had the larger share of the blame and apportioned liability 60:40 in the claimant’s favour.

THE JUDGMENT ON CONTRIBUTORY NEGLIGENCE

After giving a judgment on liability the judge gave a detailed addendum judgment in relation to the issue of contributory negligence.

Addendum to Judgment

1. 1. On the receipt of my draft judgment in the above case the defendant when seeking permission to appeal on the apportionment of liability, indicated that a ground of the appeal was that I had not provided sufficient reasons for my conclusion on apportionment. I disagree, however given this submission, I have decided to set out more detailed reasons for my decision.

1. 1. For the reasons set out in the main judgment I found Mr Chilvers to have been negligent.

1. 1. Section 1(1) of the Law Reform (Contributory Negligence) Act 1945 provides:-

“Where any person suffers damage as a result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such an extent as the court thinks just and equitable having regard to the claimant’s share in responsibility for the damage …”

1. 1. The Act requires the court to look at the claimant’s share of responsibility for the damage, assessing the causative contributions, and in the light of that assessment, but not confined to it, to decide what is a just and equitable apportionment and in so doing the court is entitled to take into account the extent and degree that the claimant has departed from the reasonable standards expected of him (see Tompkins v Royal Mail Group Plc [2005] EWHC 1902).

1. 1. Counsel for both parties cited a number of authorities in support of their respective submissions on the question of apportionment. Before turning to those cases, it is important to note that each of the cases depended on the evidence before the court. In some older cases for example, the court did not have the advantage of expert evidence. In this case I have heard extensive expert evidence in particular about the ability of someone in the claimant’s position to have been able to appreciate the lorry was stationary and the time it would take to react to the lorry’s presence. I do not repeat in full my findings in respect to the expert evidence. In short I accepted the evidence of Ms Eyers over that of Mr Mason, where there was disagreement. I found her evidence clear, well-reasoned, compelling and supported by academic research.

1. 1. I do not refer to all of the cases I was referred to as some related more to issues of liability rather than apportionment. However, I accept there is a degree of overlap. For the avoidance of doubt I have considered all the cases cited to me in argument.

1. 1. Whilst counsel for the defendant on the question of apportionment in his closing submissions only referred me to Rouse v Squires op cit., in his more general submissions I was referred to Lee v Lever op cit, the Court of Appeal unreported case of Howells v Trefigin Oil and Trefigin Quarries Ltd 2^nd December 1997, and Houghton v Stannard [2003] EWHC 2666. Counsel for the claimant on the question of contributory negligence referred me to Foster v John Maguire [2001] EWCA Civ 273.

1. 1. In Rouse v Squires op cit, an articulated lorry skidded into a jack knife position obstructing the near and centre side lanes of the M1. A motorcar in the central lane of the M1 collided with the lorry and stopped with its rear lights on. A stationary lorry in the nearside lane some 15 feet short of the jack knifed lorry was illuminating the scene with its headlights. Five to ten minutes later, the defendant driving a lorry at 50 mph with dipped headlights came driving in the near lane within view of the collision some 400 yards from it, but did not appreciate the vehicles were stationary until 150 yards away. Seeing the parked lorry, he braked and moved into the central lane and then realised that this lane was blocked. He braked hard but skidded and collided with the parked lorry which was pushed forward, knocking down Mr Rouse who was assisting at the scene. A fatal accident claim was brought by the widow of Mr Rouse against the defendant who had collided with the parked lorry. It was settled. The defendant sought to recover in third party proceedings against the driver of the jack knifed lorry. The judge at first instance found that the defendant had driven extremely negligently by not keeping a proper lookout and should have observed the vehicles long before he did. Further he found that he was driving at excessive speed. He found that the jack knifed lorry was adequately lit and that a driver keeping a proper lookout ought easily to have seen it. He found that in those circumstances the driver of the jack knifed lorry was not negligent. On appeal the issue primarily concerned whether the negligence of the driver of the jack knifed lorry in creating an obstruction on the road could be seen as having contributed to the causation of the accident or whether the immediate cause was the driving of the other driver. The Court of Appeal held there was no break in the chain of causation and went on to decide that the driver of the jack knifed lorry was 25% to blame.

1. 1. This case is clearly very different on its facts but it does illustrate that where through negligence an obstruction is created there is still a significant degree of negligence even in circumstances where the accident was wholly avoidable and occurs because of the very poor driving by driver of the car that collided with the lorry.

1. 1. The case of Lee v Lever op cit has some similarities to the circumstances that arose in this case. The claimant was driving his car along a main road when the car lights failed due to an electrical fault. The road was a clearway dual carriageway, lit by sodium street lights. The claimant steered his car onto the kerb and but left it unlit. The defendant travelling in the same direction as the claimant at 30 mph with dipped headlights failed to appreciate that the object in front of him that was a dark shape was a stationary car and collided with it. The county court judge held that the claimant was wholly to blame for the accident for leaving the car in the position it was unlit and found him totally to blame for the accident. The Court of Appeal held that the presence of the unlit car created a danger. They apportioned blame equally between the parties.

1. 1. Again this case illustrates that the negligent creation of an obstruction on a clearway attracts a significant degree of negligence even in circumstances where the driver colliding into the obstruction could and ought to have been able to avoid a collision occurring. Whilst it is said that in this case part of the negligence of the driver was leaving an unlit vehicle on the road (which was well lit itself) similarly in this case the tunnel was well lit but the flashing beacons are both a sign of a stationary or slow moving vehicle and on a clearway and I accept that this is more likely in the eyes of a motorist to be consistent with slow moving vehicle rather than a stationary one. I accept the suggestion of Ms Eyers that the reflecting flashing beacons on the wall are likely to cement the view the lorry was moving as they create a sense of movement. Further, in Lee v Lever, the criticism of leaving an unlit vehicle must be seen in the context of the judge accepting that the road was well lit and the unlit vehicle was entirely there to be seen by the approaching motorist. Further, in the case of Lee v Lever the Court of Appeal in assessing the relative negligence of the two drivers noted that whilst the driver who collided with the vehicle was not keeping a proper lookout, the driver of the stationary vehicle was required to be prepared for foreseeable hazards including their bad driving. Buckley LJ at p39C put it in this way:-

“It is not the law that a driver is entitled to assume that all other users of the road will in all aspects and at all times obey the Highway Code or otherwise drive with all due care and attention or use the road in every way in which it should be used. It is incumbent upon any driver to be prepared for foreseeable hazards, including hazards resulting from the foreseeable bad driving of other drivers or a foreseeable breach of the Highway Code or other regulations by other road users …”

1. 1. The cases of Houghton and Howells are examples of where the court concluded that there was no negligence upon the driver of the stopped vehicle. In Houghton this was because the driver had no option but to stop due to a breakdown (which could not be blamed upon the driver) and where the driver had done all he could to eliminate any danger caused, and where the colliding driver accepted they should have avoided the collision. Further, in Howells a cyclist who collided with the stationary vehicle in circumstances where he was riding too fast and practically blind and where he only looked up when he was 15 yards from the back of the lorry and therefore was unable to stop. The Court of Appeal held that although the lorry was an obstruction, the gross negligence of the cyclist was such that there was no liability upon the lorry driver.

1. 1. In Foster v Maguire the defendant drove his van and trailer along a dual carriageway and then turned into a break in the central reservation in order to undertake a U turn. After the U turn he drove the van and trailer into the nearside of the opposite carriageway and stopped by the nearside kerb about 50 m from the break in the central reservation. The nearside of the trailer was about 15 cm from the kerb. The van and trailer however completely blocked the cycle lane. The defendant saw the claimant riding her bicycle when he was waiting to complete the U turn not more than 385.5 m away from him and saw her on a second occasion still some distance away. The claimant failed to see or notice the parked trailer. She was riding with her head down and therefore only saw the lorry when she was 5-10 yards away. At first instance Mr Justice Bell held that the sole effective cause of the collision was the claimant’s own failure to take care for her own safety in that she rode with her head down at 12-15 mph with a visibility of only 5 to 10 yards when, had she had her head up, the van and trailer was visible for up to 185 m prior to the collision (namely for about 30 seconds). The judge held that the defendant could not have been expected to have reasonably foreseen that the claimant riding down a straight road for about one minute would continue to ride into the back of the trailer. By a majority the Court of Appeal overturned this decision. It held that despite the substantial negligence of the Claimant, who was in effect riding in such a manner that their ability to stop within their forward vision was extremely limited, the defendant in blocking the cycle lane where stopping was not permitted and in circumstances where there was a safe place to stop further down the road was 30% to blame.

1. 1. This case is another illustration that even when the colliding vehicle could and should have ridden / driven in such a way that the accident could have been completely avoided the vehicle creating the obstruction still attracted a finding of negligence.

1. 1. The case also illustrates how on the same factual scenario different judges can come to very different conclusions and how on appeal two judges were of the opinion that the trial judge’s conclusion was not one that was reasonably open to him and the other judge in the Court of Appeal was of the opinion that the judge at first instance was correct in his analysis in respect of liability.

1. 1. However, as I have already said in respect of each of the cases referred to, there are dangers in a court trying to derive principles from what are essentially fact specific conclusions in a particular factual matrix.

Discussion

Submissions

1. 1. Counsel for the defendant’s submissions can be summarised as follows:-

(i) Whilst Mr Chilvers did not give evidence, he indicated to the police he had heard a noise and he judged it necessary to stop. Had he not stopped he would have exposed other road users to the risks associated with the noise that could have included something falling from the lorry with potentially fatal consequences.

(ii) Mr Chilvers, having made the decision to stop, minimised any risks associated with his stopping. He activated his flashing beacons (albeit not his hazard lights) and stopped in the slip road where the tunnel was straight and where vehicles entering behind him in the slip road would have had (on any view of the experts’ evidence) the ability to stop if they were within the speed limit. Other vehicles were able to avoid a collision with the lorry before and after the collision.

(iii) The claimant in moving from running lane 2 into the slip road, whilst not a forbidden manoeuvre (although running lane 1 was the marked lane for those exiting the tunnel in the direction the claimant wished to go), was dangerous and plainly in contravention of various provisions of the Highway Code that place an obligation to ensure that it is safe before moving lanes. It is said that the claimant failed therefore to keep a proper lookout and failed as he should have done to see the lorry that was clearly visible from its beacon and flashing LED lights and the lighting within the tunnel. He failed having entered the slip road to control his scooter by braking or otherwise to avoid a collision.

1. 1. Counsel for the defendant suggested that in these circumstances any negligence on the part of Mr Chilvers was limited to 15% or perhaps 25% and this was a case most closely analogous to that of Rouse v Squires op cit.

1. 1. Counsel for the claimant’s submissions can be summarised as follows:-

(i) The tunnel and the roads leading up to it were urban clearways which forbid any vehicle from stopping. As such road users would not expect anyone to stop.

(ii) The lorry created a substantial obstruction of the road covering the whole of the slip road. Such an obstruction was plainly dangerous.

(iii) The burden of proof in respect of contributory negligence is upon the defendant. On the very limited evidence of Mr Chilvers the court cannot conclude that there was a need to stop the lorry, for example, to prevent imminent danger to others. He pointed to the fact there was an absence of evidence from the police crash investigation that suggested there was any reason for Mr Chilvers to stop immediately. There was no mechanical defect with the lorry. There was an absence of evidence that there was any loose item on the lorry that might fall off or that there was any problem with the load (if any) in the lorry. The photographs do not show any visible load on the lorry. The actions of Mr Chilvers in continuing to drive some distance before stopping are inconsistent with the suggestion there was any imminent danger. Further, there is no indication that Mr Chilvers had any reasonable anticipation of a danger so acute that he was justified in stopping and parking up in the tunnel rather than driving further to a safe place out of the tunnel (or in the alternative a safer place further along the slip road). The hearing of a noise as described to the police is a frequent enough occurrence for drivers and the evidence the defendant is able to put forward is no higher than that Mr Chilvers heard a noise. As such stopping to investigate cannot be said to be a reasonable reaction and even more so in a tunnel that is a clearway. A prudent driver would look for somewhere safe to stop and if on a clearway that would involve leaving the clearway and then finding a safe place to stop. Instead to stop and cause a fresh danger that clearly outweighs an undiagnosed problem was very negligent. This must also been seen in circumstances where a prudent driver before leaving the depot will have been required to check that any his load is safe and secure and that his vehicle had no mechanical problems. In fact there was layby just outside the tunnel in the direction of Isle of Dogs (the slip road turn off) where he could have stopped. It is possible that the reason Mr Chilvers stopped where he did was because he was in fact wishing to continue in the tunnel and not take the Canary Wharf exit. However, that would not justify him stopping where he did rather than exiting the tunnel as soon as possible and finding a safe place to stop. The thoughtlessness of his actions are evident by the fact he stopped just after signs that made it clear you should not stop in the tunnel. The level of dangerousness is evident by the fact that, whilst other vehicles following in the same running lane 1 did not collide with the lorry, they had to take evasive action to prevent a collision and in the case of one vehicle swerved back from the slip lane into running 1, in circumstances where, unlike the claimant, it was possible to do so.

(iv) In a case such as Foster op cit even where there was ample opportunity to stop and where a prudent cyclist keeping a proper lookout would have been able to stop in good time, avoiding a collision, there was still 30% negligence upon the van driver for stopping and blocking the cycle lane. However, this is not a case where the claimant was a vehicle behind the lorry, but of the claimant seeking to move from running lane 2 into the slip lane. In conducting such move, the claimant’s ability to observe the stationary vehicle was extremely limited both due to vehicles in the other lanes and because the claimant in moving from running lane 1 into the slip lane was also required to ensure that it was safe to do so by looking to their left and behind them.

(v) Ms Eyers’ expert evidence was that when travelling in the same direction as a vehicle that was stationary it is very difficult for a road user to appreciate the vehicle ahead is stationary, even if displaying warning lights. In this case any user of the tunnel would naturally assume, especially as it was a clearway, that the vehicle was moving and not stationary.

(vi) On the facts of this case the flashing lights were potentially very difficult to observe given the claimant would have primarily been required to concentrate on his moving from running lane 2 into running lane 1 and then into the slip road, where the key concern would be vehicles already in the slip lane behind or to the side of him. Further, the taller van in running lane 2 would have created some obstruction and there was traffic in running lane 1 that had the potential to obscure his view. The flashing lights off the side of the tunnel had the potential to create a sense of movement rather than warn that the lorry was stationary. A road user is more likely to associate flashing beacons with a slow moving vehicle. It is not uncommon for lorries etc to travel with their flashing lights illuminated. Further given this was a clearway where vehicles are not allowed to stop this would further reinforce a view that the lorry was slow moving rather than stationary.

(vii) The other vehicles driving behind the lorry in running lane 1, despite being aware of the slowing lorry and the greater visibility of the lorry to these vehicles, including Mr Chilvers’ opening of the lorry door, all attempted to join the slip road, but were able to move back into lane 1. This has to be contrasted with the claimant whose view of the lorry and movement across the lanes of traffic gave him no real chance to avoid a collision.

(viii) The claimant’s expert evidence shows that when the lorry was in direct sight of the claimant he would not have had the ability to stop in time at the speed he was travelling which was just above the speed limit and even at the speed limit stopping would not have been possible.

(ix) If Mr Chilvers’ lorry had been moving even at a slow speed then no collision would have occurred. This is illustrated by the fact that the claimant reacted before impact at about 0.76 seconds. If the lorry had been travelling at even 10 mph then it would have travelled a further 12 to 15 m in the time it took the claimant to come across from running lane 1 and join the slip road and by the time therefore it arrived at the point of impact the lorry would have been 15 m or so further along and therefore no collision would have occurred. This example is based on 10 mph. In fact many slow moving vehicles are likely to be travelling faster than that.

(x) Mr Chilvers only needed to have stopped a short distance further down the slip road to provide a greater chance for drivers to avoid a collision both generally and in respect of a vehicle moving across lanes, as such a vehicle could use the second slip lane that emerged shortly after the stationary lorry. Further, the addition of an extra lane would give vehicles a greater opportunity if they were in the initial slip lane to be able to move into the second slip lane in order to avoid a collision.

(xi) The court should accept the claimant’s expert Ms Eyers’ evidence (which I have done).

(xii) When considering any negligence of the claimant the court should take the following matters into account:-

(i) The claimant was approaching from running lane 2. The ability to see the lorry was thus restricted by virtue of traffic in front of him and to the side. Further, any view the claimant would have had would be over the top of other vehicles and at an angle.

(ii) The visual clues that the lorry was stationary that following vehicles would have had were not available to the claimant e.g. the initial activation of the beacons, the lorry slowing and brake lights coming on the opening of the lorry door and the actions of cars in front of the lorry.

(iii) By the time the claimant had a direct sight of the lorry, he would not on the expert evidence have had time to appreciate it was stationary and to have stopped.

(xiii) In order for the claimant to have been negligent, whilst the Highway Code requires a driver to take reasonable steps to make sure it is clear to change lanes the court would have to be satisfied that the claimant ought to have anticipated that the lorry might have been stationary and thus it was unsafe to cross into the slip lane at the point he did. A reasonably prudent driver was entitled to assume that the vehicle was slow moving and in such circumstances his entry into the slip lane when there was a safe distance ahead of him was not negligent.

(xiv) The case of Foster v Maguire op cit illustrates that a cyclist was 70% to blame in circumstances where they were driving with their head down and had some 30 seconds in which had they looked ahead they would have been able to see the stopped van and trailer. With this as a long stop in terms of contributory negligence at its highest we have a claimant criticised for not appreciating that the lorry was not a slow moving lorry to be contrasted with the much higher degree of negligence by Mr Chilvers who took an unjustified decision to stop in the first place and where in any event if he had to stop he could have done so out of the tunnel or at the very least further along it. Therefore in terms of causative blameworthiness and causative potency Mr Chilvers’ negligence is far greater than the claimant who is being criticised for momentary inattention and a marginal excess of speed.

(xv) The reduction in the claimant’s damages should be no more than 15%.

Analysis

1. 1. Broadly I accept the submissions of counsel for the claimant but do not believe his proposed apportionment of liability is appropriate. Similarly, whilst I accept the suggestion that the claimant in crossing into the slip lane was negligent, I do not accept that the degree of negligence is as high as counsel for the defendant suggests.

1. 1. The starting point in any analysis in my judgment is that Mr Chilvers created an obvious danger. He stopped on a clearway in a tunnel. As such a stopped vehicle is going to be a rare and unusual occurrence. The lorry blocked the whole of the slip lane. There was a much safer place to stop just a few metres along. Whilst Mr Chilvers stopped because he heard a noise, in my judgment, that was not sufficient to justify the decision to stop where he did. There is no evidence of any reason, apart from the hearing of a noise, that could justify the decision to stop. The lorry on inspection had no defect. There is no evidence that any load or other part of the lorry was unsafe. Noises are heard by drivers on many occasions and that does not justify a decision to stop and block the highway. This is even more the case in respect of a tunnel and an urban clearway. Whilst I accept that the lorry stopped some 75 m into the slip road, it had just come round a bend. The safer approach would have been to slow down, exit the tunnel and find a safe place to stop. Thus, in my judgment the stopping of the lorry created an obvious and very substantial danger on the highway. Counsel for the defendant makes much of what might be called mitigation measures to reduce the danger, namely the illumination of the flashing beacons. It is significant to note that even for cars following the lorry they all drove into the slip lane, albeit were able to avoid a collision, as running lane 1 was clear. I accept that after the accident there was no second collision but in my judgment that does not of itself prove that the use of the beacons was a sufficient mitigation of the substantial danger caused by a stationary lorry in a tunnel on a slip road on a clearway. Further, it was entirely foreseeable that vehicles may move from running lane 2 for example and seek to cross into the slip lane. It is obvious that the flashing beacons in these circumstances would be much less visible given the potential of traffic in front of vehicles in running lane 2 and any vehicles in running lane 1. Further, a vehicle moving across the two lanes firstly has to ensure it is safe to move from running lane 2 into running lane 1 and thus their immediate attention concerns the safety of moving into the next lane across. Further, I accept the suggestion that the flashing lights bouncing off the tunnel walls are quite likely to create a sense of movement rather than the lorry being stationary. Lastly but most importantly flashing beacons do not mean a vehicle is stationary. In fact most drivers are in my judgment likely to associate flashing lights on a lorry as meaning the vehicle is slow moving rather than stationary, especially on a clearway.

1. 1. Therefore, in my judgment the beacons do not significantly reduce the dangerousness of the decision that in my judgment was unjustified to stop on the slip road. In fact, far from reducing the danger they may have led to a belief that the vehicle was simply slow moving.

1. 1. The cases I have been referred to such as Rouse v Squires and Foster v Maguire illustrate that even in cases of very substantial negligence on the part of the colliding motorist / cyclist the vehicle negligently creating the obstruction was still liable for a significant degree of negligence – 25 and 30% respectively. In my judgment neither of these cases supports the suggestion that the level of contributory negligence of the claimant should be in the sort of order suggested by counsel for the defendant, namely 85% to 75%.

1. 1. The expert evidence of Ms Eyers is that from the moment the claimant would have had an unobstructed view of the lorry he would not have appreciated the lorry was stationary (even taking into account the flashing lights) and been able to stop at the speed the claimant was travelling. At 30 mph there would still have been a collision. In fact the claimant reacted quicker than that the range of reasonable reaction times. In these circumstances in my judgment it is difficult to criticise his reaction, after he realised the lorry was stationary, which appears to have been to consider the possibility of re-joining running lane 1 (which was blocked) or violent braking. In my judgment how the claimant reacted at this point is not something that can be held against him.

1. 1. In my judgment however, the claimant was required to ensure that it was safe before moving lanes. I accept that had the lorry been slow moving a collision would not have occurred, but in my judgment, it was foreseeable that the lorry might have been stationary and by moving into the slip road a risk was being created.

1. 1. The question is to what extent is this contributory negligent. Counsel for the claimant suggests that the negligence in such circumstances is small and puts it 15%.

1. 1. I disagree. This is not a case of simple momentary inattention but a failure to contemplate something that the claimant should have realised was a real possibility, albeit on Ms Eyers’ evidence he would not have actually been able to appreciate it was stationary before colliding with it.

1. 1. So in short Mr Chilvers created an obstruction. That obstruction was in my judgment extremely dangerous. It was not justified to stop in the tunnel at all or in alternative where he did. If he had not stopped where he did there would not have been a collision at all. Whilst the flashing lights on one level were an attempt to reduce the risks associated with his unjustified stopping, they were of little help with regard to the foreseeable movement of vehicles from running lane 2 to running lane 1. In fact, the bouncing lights off the tunnel walls will have created an illusion of movement. As the expert evidence demonstrates, the claimant cannot be criticised for not realising that the lorry was stationary, given the reaction times. Therefore the criticism of the claimant is that he nipped across the lanes and failed to give any thought or if he did consider wrongly discounted the fact that the lorry was stationary. Further, the claimant on the expert evidence slightly accelerated as he moved into the slip lane slightly over the speed limit. Had the lorry been slow moving this would not have been a problem.

1. 1. In these circumstances there are not dissimilar amounts of negligence on both parties in this case. In my judgment:- (i) Mr Chilvers created the unjustified dangerous obstruction and (ii) the claimant cannot be criticised for not appreciating that the lorry was stationary but (iii) he can be criticised for failing to consider that it was a possibility. However, this possibility was much less likely than a slow moving vehicle, particularly in circumstances where both vehicles were on a clearway. Further, the key focus when moving lanes is on the key dangers of crossing lanes namely to ensure there was no vehicle to your side or rear. Whilst as the claimant crossed into the slip lane his speed increased by a small amount, I accept Ms Eyers’ evidence that shows that a collision would still have occurred. In my judgment when the claimant became aware (as evident from the CCTV footage) his reactions cannot be criticised. Not unsurprisingly his initial reaction appears to have been whether he could swerve around the lorry (which he could not) and then deciding to brake.

1. 1. Therefore in assessing the relative contribution of the parties, the defendant created a dangerous obstruction blocking the slip road, in circumstances where the ability of the claimant to appreciate the danger was limited as I have found, set against the failure of the claimant to consider the possibility that the lorry was stationary. Balancing all of these respective factors in my judgment leads to a conclusion that the appropriate apportionment of liability is 60/40 in favour of the claimant.

Note 1   Dymond -v- Pearce [1972] 1QB 486, Rouse -v- Squires [1973] QB 889, Lee -v- Lever [1973] RTR 35, Foster -v- Maguire [2001] EWCA Civ 273, Bland -v- Morris [2005] EWHC 71 (QB), Tompkins -v- Royal Mail [2006] RTR 5, Whitehead -v- Bruce [2013] RTR 25, Howells -v- Trefigin Oil and Trefigin Quarries Ltd (unreported 2/12/97; CA), Houghton -v- Stannard [2003] EWHC 2666, Goad -v- Butcher [2011] EWCA Civ 158.     [Back]