Is this the right call from the Appeal Court?

[Grahamm]

Ok, it's taken me some searching, but here's a more detailed report of the Appeals Court Ruling rather than just newspaper summaries.

In the case of ROBERT WHITEFORD v KUBAS UAB 09/05/2012 the Court of Appeal decided that the court at first instance had made a mistake in imposing too high a standard of care on a lorry driver in finding him primarily liable for a road traffic accident in which a motorcyclist collided with the lorry. The accident had occurred on a narrow country lane, and the lorry driver could not properly be criticised for taking a course which kept him away from the edge of the road but slightly over the centre white line on a bend, particularly where the motorcyclist had admitted some fault in driving too close to the centre line himself.

The Claimant in the case had been riding a motorcycle along a narrow country road. As he approached a bend, a lorry appeared from the opposite direction.  The Claimant’s leg struck the front offside corner of the lorry and he sustained serious injury, for which he claimed damages. The matter came before the court at first instance for a trial on liability.  The Claimant’s evidence was that when he first saw the lorry, about three seconds before impact, its cab appeared to be over the centre white line whilst its front wheel was on the line.  The Claimant accepted that he was also at fault in that he could have driven further over to his left as he went around the bend, and conceded that if he had done so, he would have passed the lorry.


The parties’ experts agreed that neither had been driving at speed, and that their view of each other had been hampered by the bend in the road, a change in elevation and a mature tree. The experts agreed that the road was only slightly wider than the lorry, and that the lorry’s front wheels were on or just over into the Claimant’s  lane at the time of impact.  The court at first instance found that the lorry driver should have appreciated that he was in a large vehicle on a narrow road and kept to the left. He accepted the Claimant’s statement that the lorry was encroaching over the centre line at impact. The court found that that was causative of the accident, so that the lorry driver was primarily liable for the accident, although the Claimant was 50 per cent contributorily negligent.

The defendant contended that, on the facts as found, the court at first instance had been wrong to find that the lorry had been driven negligently.  It submitted that, given the relative sizes of the lorry and the carriageway, it was a counsel of perfection to hold that the lorry driver should have driven even closer to the edge of the road than he had, which amounted to a distance of only a few inches.  The Defendant argued that any attempt to drive any closer to the nearside would give rise to risks of its own. It referred to the Claimant’s admission that he could have driven more to the centre of the lane, and contended that if he had done so, the collision would have been avoided.

The Court of Appeal decided that in considering liability for road traffic accidents, the court had to bear in mind the need to avoid imposing a counsel of perfection: the standard was one of reasonable care (Ahanonu v South East London and Kent Bus Co Ltd 2008 followed). This case did not concern any dispute of fact, but an assessment of whether negligence was established on the primary facts as found. The Court of Appeal could substitute its own judgment in such circumstances, although it would approach the invitation to depart from the judge’s findings with caution.


It was striking that the road in question was a relatively narrow country road and the lorry’s lane was barely wide enough for it to fit into. The finding that, by straying onto and just beyond the centre white line, the lorry driver was not acting in the way a reasonable and prudent driver would have was not accepted. On the contrary, it had been reasonable for him to have given himself a reasonable amount of room. The situation he was faced with was not unusual on a country road, and for a lorry driver to have driven on or close to the edge of the road would have created risks of its own. He could not properly be criticised for taking a course keeping him slightly out from the edge. There should have been no problem for a motorcycle taking the proper line to have managed the bend without colliding with the lorry. The facts were not such as to establish a breach of duty on his part: that would impose an unacceptably high standard. The court at first instance had erred in it’s finding as to the Claimant’s liability, and the Claimant’s claim had to be dismissed.

Also, from the lorry driver's Barrister's site:

[...] there was contact between the HGV’s fuel tank and the Claimant motorcyclist’s right leg, causing an amputation.

So, going by this, it sounds like it was a left hand bend (had it been a right-hander any collision would have been entirely different) and whilst it says "The parties’ experts agreed that neither had been driving at speed, and that their view of each other had been hampered by the bend in the road, a change in elevation and a mature tree" it doesn't say *what* speed either was travelling at.  "At speed" could simply mean "not over the limit" but if it was a narrow road and a fairly sharp bend, you wouldn't need to be doing the limit to over-cook it.


Now positioning to the right for a left-hander is entirely reasonable provided (as the rule has it) "always be able to stop in the distance you can see clear on *your* side of the road, and although the biker said he had "about three seconds" I wouldn't take that as more than a wild guess at the time involved.

The report also says "It submitted that, given the relative sizes of the lorry and the carriageway, it was a counsel of perfection to hold that the lorry driver should have driven even closer to the edge of the road than he had, which amounted to a distance of only a few inches".


So, even though I'd like to sympathise with the biker's case, looking at the facts above it suggests to me that he'd either over-cooked the bend or panicked and anchored up (or both) maybe even with a bit of Target Fixation and some or all of these meant he ran wide and hit the lorry, rather than the driver being negligent.