Cook v Thorne & Anor

An appellate court should be slow to interfere with a first-instance apportionment of responsibility for contributory negligence, particularly where there is no error of fact or law. A challenge based only on disagreement with the assessment will rarely justify intervention. The assessment must reflect the parties’ respective blameworthiness in the circumstances. A motorist who is blinded by approaching headlights must respond by slowing substantially, potentially to crawling speed, or stopping if necessary. Authorities concerning intoxicated persons who had assumed responsibility for themselves were not comparable where the defendant motorist remained under a continuing duty of care.

The claimant was seriously injured after being struck by the first defendant’s car while standing in the road after leaving the second defendant’s vehicle. The claimant and the second defendant had been drinking. The first defendant was approaching with full-beam headlights from the stationary vehicle shining into his eyes, but continued at about 30 miles per hour.

The trial judge assessed the claimant’s contributory negligence at 30 per cent, attributed 70 per cent of the blame to the first defendant and 30 per cent to the second defendant, and rejected the defendants’ submission that the claimant should bear the greater share. The defendants appealed against that apportionment.

1. Appeal dismissed with costs. The Court of Appeal declined to substitute an apportionment of 70 per cent against the claimant.
2. Per Longmore LJ, with whom Simon Brown LJ and the Master of the Rolls agreed in the result and essential reasoning, the court is extremely reluctant to interfere with a first-instance apportionment of blame where there is no error of fact or misdirection in law. The defendants challenged the weight attached to the evidence, rather than identifying such an error. The principle was supported by The MacGregor [1943] AC 197 and Brown v Thompson 1998 1 WLR 1003.
3. The trial judge was entitled to find that the first defendant had been driving in a dangerously blinded condition. A prudent driver in that situation should have slowed to a very low speed, possibly about 5 miles per hour, or stopped if unable to proceed safely. Continuing at approximately 30 miles per hour was wholly unrealistic.
4. The court distinguished Barrett v Ministry of Defence [1995] 1 WLR 1217. That case concerned responsibility arising after the defendant had assumed responsibility for a person who had collapsed through intoxication, whereas the first defendant here was continuously subject to a duty of care as a road user. The claimant’s presence in the road did not make him more blameworthy than the first defendant.
5. Jebson v Ministry of Defence [2000] 1 WLR 2055 was materially different and its brief discussion of contributory negligence provided no assistance.

• Court of Appeal (Civil Division): dismissed the defendants’ appeal and upheld the trial judge’s apportionment of 30 per cent contributory negligence against the claimant.
• Bristol District Registry: His Honour Judge Rutherford assessed the first defendant as 70 per cent responsible, the second defendant as 30 per cent responsible, and the claimant as 30 per cent contributorily negligent.