Henderson v Cooke

A motorcyclist approaching slow-moving vehicles at substantially excessive speed must slow down and anticipate that one may overtake another. Failure to do so may be substantially causative of a collision, even where the other driver was also negligent. A trial judge’s apportionment of responsibility is an evaluative judgment with which an appellate court will seldom interfere. The absence of evidence of actual impairment does not prevent a judge inferring that alcohol may have contributed to excessive speed or reduced care, where the driver was found just below the applicable limit.

The appellant motorcyclist collided with the respondent’s car on an unlit road shortly after the respondent had emerged from a side road and begun overtaking a slow-moving van. The first-instance judge found both parties negligent and apportioned responsibility equally.

The appellant argued that the respondent had pulled into his path with no realistic opportunity for avoidance, and that his speed was therefore not causative. He also challenged reliance on the fact that he was just below the alcohol limit after the accident. The central issues were whether the appellant’s speed materially contributed to the collision and whether the equal apportionment should be disturbed.

1. Appeal dismissed. The Court of Appeal unanimously upheld the finding that the appellant and respondent were equally to blame. The respondent was negligent because he should have seen the motorcycle approaching fast on his offside before beginning to overtake.
2. The appellant’s speed and determination to overtake were nevertheless substantially causative. At about 70 miles per hour, the motorcycle travelled approximately 30 metres per second. Approaching two slow-moving vehicles at that speed, the appellant should have slowed considerably and anticipated that one might overtake the other. He neither braked nor indicated, hooted, or flashed his headlight.
3. The court rejected the submission that the appellant’s speed was irrelevant because the collision would have occurred in the same way at a lower speed. The short timeframe did not eliminate the causal significance of the speed. On the judge’s findings, the appellant had first seen the respondent beginning the overtaking manoeuvre while still some distance away and had an opportunity to avoid the collision.
4. The trial judge was entitled to infer from the appellant being just below the alcohol limit after the accident that he may have been travelling faster and exercising less care as a result of alcohol’s effects. Evidence of actual impairment was not essential to that inference.
5. Apportionment of responsibility is very much a matter for the trial judge, and the appellate court seldom interferes where the apportionment is supported by the findings. The appeal was dismissed with costs on the standard basis.

1. Court of Appeal (Civil Division): Dismissed the appeal and upheld the equal apportionment of responsibility.
2. Chichester County Court: His Honour Judge Barrett QC found the motorcyclist and driver equally to blame for the accident.