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Common scenarios for split liability & contributory negligence

11 May 2018

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Not all road traffic accident cases are straightforward.

In some cases the parties blame each other for the accident and so a more detailed examination of the accident circumstances and witness evidence is required to determine the cause of the accident. If the evidence points to both parties being at fault then the case may settle on a ‘split liability’ liability basis where each party is compensated in accordance with the percentage they were at fault.

Where a party is partly responsible for the injuries they have sustained, e.g. by failing to wear a seatbelt, then this is referred to ‘contributory negligence’. A finding of contributory negligence will reduce a claimant’s compensation award by the percentage their negligence has contributed the accident or their injuries.

Whilst each case is judged on its own circumstances, the courts often assess liability based on previously decided cases. These are cases that have been to court and have established a ruling (or precedent) about how certain types of accidents are likely to be settled.

We have outlined below several different accident scenarios where the courts frequently use previously decided cases to work out who was at fault.

That said, it is important to remember that each case will be assessed based on its own merits and although cases can be similar, the outcome will depend on the facts or the case.

  • Emerging from a side road

Powell v Moody (1966) The defendant was exiting a minor road onto a main road. There was a queue of traffic on the main road, and he was invited to leave the minor road by a driver on the main road in the queue of traffic. As he did so the claimant, on a motorbike, was riding along the offside of the queue and collided with the defendant’s vehicle. The judge found the claimant to be 80% to blame, as any party jumping a queue of stationary vehicles is ‘undertaking an operation fraught with great hazard’.

This case is frequently used by insurers to reduce the amount of compensation they pay out even though it is often not relevant.

Leeson v Bevis Transport (1972). The claimant, a motorcyclist, was overtaking a line of stationary traffic when a van emerged from a side road on the left. The court said the claimant did nothing wrong in overtaking the line of stationary vehicles, but should have been aware of the junction and proceeded with care. Liability apportioned 50/50.

Worsford v Howe (1980). The claimant, a motorcyclist, was riding his motorcycle in the offside lane of a two lane road, passing a line of stationary vehicles in the inside lane. One of the vehicles, a tanker, left a gap ahead of it to allow vehicle to enter from a junction on the left. A car emerged very slowly in front of the tanker turning right across both lanes and into the path of the overtaking motorcycle. The court said both parties were equally to blame and apportioned liability 50/50; the claimant for travelling too fast and the defendant for having gone beyond his line of vision.

Patel v Cuthbert (2009). The claimant, a motorcyclist, was overtaking a queue of stationary traffic on the approach to a traffic light controlled junction travelling at about 20mph. The defendant was seeking to emerge from a road on the left and was allowed out by one of the queuing vehicles. There was a collision as the claimant ran into the nearside of the defendant’s vehicle. The court found the motorcyclist 100% to blame because he was travelling too fast and should have taken extra care at the junction.

  • Turning right whilst being overtaken

Joliffe v Hay (1991). The claimant was on a main road approaching a junction, intending to turn right. As he turned he was hit by a car from behind attempting to overtake. The court apportioned liability 70/30 in the claimants favor on the basis that although overtaking car was primarily responsible, the claimant ant used his mirrors only one.

Davis v Schrogin (2006). A motorcyclist was overtaking a queue of stationary traffic on a long stretch of road with one lane in each direction. A car driver in the stationary queue decided to execute a U-turn and, as a result, a collision occurred. The court found the overtaking motorcyclist was not travelling at speed and, even if he had been, it was not causative of the collision. Driver held 100% liable.

  • Misleading signal

Wadsworth v Gillespie (1978). The defendant was stationary at a junction waiting to enter a major road. The claimant was riding his motorbike along the main road.. The defendant noted the left indicator flashing on the claimant’s motorbike and, reacting to it, began to turn onto the main road. The claimant continued straight on and a collision occurred. The court found that the motorcyclist had accidentally knocked the indicator and was not aware it was flashing. The judge criticized the car driver for relying on the misleading signal and for not satisfying herself that the motorcyclist was indeed turning left. He also found that the claimant had failed in his duty of care, as he was proceeding along a main road giving a misleading signal. Liability apportioned one-third, two-thirds in the motorcyclists favour.

(The thing to remember here is that the judge accepted that the indicator was on accidentally.
This case needs to be distinguished from a number of others that are all quite similar, but which have small but important differences.)

Winter v Cotton (1985).A claimant was stationary at a junction with a main road. The defendant was driving slowly along the main road with his near-side indicator flashing. The claimant, relying on both the signal and the defendant’s slow speed, began to manoeuvre onto the main road. The defendant drove straight on and the vehicles collided. The judge decided the claimant was entitled to move off, given the speed of the defendant’s vehicle and the flashing indicator, and held that the defendant was 100% liable for the collision.

Soil Ltd v Bromwich (1998).The defendant had seen the claimant approaching from the right on a major road and signalling left about a half a car length before the junction, whilst slowing to approximately 15mph. The defendant acted on this and moved to join the main road. The claimant’s actual intention was to pull up on the other side of the junction on the left side of the main road. The defendant argued that the claimant’s signal was misleading. The claimant relied on Highway Code rule 111, which states that a driver should never assume that a flashing headlight is a signal inviting you to proceed. The judge held that an award in full should be made to the claimant, saying he felt the claimant had used his best endeavours to drive carefully and to let the defendant know his intention wasn’t to go left, but to stop after the junction. Accordingly the defendant was found to be 100% liable for the collision.

Davis v Swinwood (2003). The claimant’s evidence was that the defendant was signalling left to enter a minor road from a main road. The defendant denied signalling left at all. The claimant said he’d relied on the defendant’s left hand indicator of his articulated lorry, and that he was travelling at low speed and situated on the crown of the main road. Under these circumstances the claimant left the minor road, and the lorry collided with the claimant’s vehicle. The judge found in favour of the defendant. He felt that the flashing indicator on the defendant’s vehicle was not the issue. The claimant was responsible because he had been seeking to enter a main road from a minor road and that the defendant had precedence, so the onus was clearly on the claimant to enter the main road safely. The judge believed the claimant had failed to do this and therefore was 100% to blame for the accident.

  • Rear end crashes and sudden braking

Gusman v Gratton-Storey (1968). The defendant was driving on a country road in daylight and applied her breaks violently in order to avoid hitting a pheasant. The claimant was driving close behind and ran into the back to the defendant’s car. The judge found the defendant 100% to blame for braking and swerving to avoid a pheasant when there was a car behind.
Elixabeth v Motor Insurer s Bureau (1981). A motorcyclist struck the rear of a van that had braked suddenly for no apparent reason. The court found that sudden braking for no apparent reason was evidence of negligence and, on that basis, found the van driver 100% at fault for the accident.

  • Excessive Speed

Malasi v Attmed (2011). The Defendant was a taxi driver who was travelling through a traffic light controlled junction and had a green light in his favour. The claimant was cyclist who was wearing dark clothes and no helmet and who when through the crossing on a red light. The taxi, which was found to be travelling at 40 to 50 mph collided with the taxi. The court found that whilst it was travelling at high speed was not itself negligence, the speed of the taxi was, to some extent, causative of the collision and the claimant’s injuries. There was no doubt that primarily liability rested with the cyclist, however the taxi was found to have contributed to the cause of the accident and the level if his negligence was put at 20%.

  • Seat Belt

Froom v Butcher (1976). Mr Froom was driving with his wife and daughter, none of whom were wearing seatbelts. A vehicle travelling in the opposite direction pulled out to overtaken and collided head-on with the Froom’s car. Mr. Froom and his wife were injured, but Mr. Froom’s injuries were made worse because he was not wearing a seat belt. The judge suggested that a reduction of 25% would be appropriate where the injuries would not have occurred at all if a seatbelt had been worn, or 15% when the injuries would have been reduced by a seatbelt. As Froom’s injuries fell into the latter category his compensation was reduced by 15%.

Pearson v Answar (2014). The claimant was travelling as a passenger in an taxi when he was catastrophically injured. The claimant was not wearing a seat belt but had he done so his injuries would have been limited to a soft tissue whiplash injury. The court considered the injuries which the Claimant sustained were so qualitatively and quantitatively different from those he would have sustained if he had worn a seatbelt restrained that a reduction of 25% was appropriate.

  • Collisions on narrow road

Barry v Pugh (2005). The claimant suffered serious injuries as a result of a collision with a vehicle and horse box on a narrow road. The precise accident circumstances could not be known because the claimant could not remember and there were no witnesses. The claimant admitted he was travelling at 15mph. The defendant conceded that she was not able to stop and had tried to steer onto the grass verge to avoid the motorcycle. The court found the defendant had not been guilty of negligence of any kind.

LAMOON V FRY (2004). The claimant, a cyclist, was cycling along a narrow unmarked country lane when he collided with a car on a bend. The cyclist had been cycling on the wrong side of the lane but had tried to move to the nearside when confronted with the defendant’s car. The defendant was travelling at 40mp and had only 15 metres to take avoiding action once he saw the cyclist. The court found the defendant primarily responsible on the basis that had he been driving more slowly the accident could have been avoided. The cyclist was contributorily negligent and his blame was apportioned at 40%.

  • Intoxication

Owens v Brimmell (1977). The claimant and the defendant were friends and had been drinking at various a pubs and clubs before the defendant drove the claimant home. The defendant lost control of the car and the claimant suffered very serious injuries. The court decided the claimant should be compensated. However, as he got into a car with someone he knew was drunk, he had contributed to his injuries and so his compensation was reduced by 20%.

Traynor v Donovan (1978). The claimant was a front seat passenger in a car driven by the defendant. The defendant was over the drink drive limit but this was not obvious to the claimant. The defendant crashed and the claimant was injured. The court refused to make a finding of contributory negligence because the claimant did not know and could not tell that the driver had drunk so much that his driving would be impaired.

Conclusion

What all of these cases show is that each case is decided on its own merits. There are no hard and fast rules that can be applied to pigeon-hole claimants into accepting set liability apportionments when that apportionment often depends on the facts of the case and the evidence.

It must also be remembered that in most cases the accident circumstances are disputed with each party blaming the other entirely for causing the accident. Insurance companies are often quick to suggest a liability apportionment that favours their policy holder, for example always quoting Powell v Moody when faced with a claim by an overtaking motorcyclist, but the correct outcome always requires a close examination of the facts and the evidence.

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