Exel Logistics Ltd v Curran & Ors

An absolute statutory safety obligation carrying strict criminal liability does not by itself set the civil standard of care or create a private damages action. A driver’s failure to check tyre pressures is judged by the reasonable person in the circumstances. Reliance on an apparently immaculate company vehicle maintained by a conscientious employer may be reasonable. Causation may be established on the balance of probabilities from the totality of expert and factual evidence, despite an absent expected physical movement where driver reaction and power steering make the sequence uncertain. Apportionment requires assessment of both blameworthiness and causative potency. Equal responsibility is appropriate where each defendant’s negligence is substantial and no intellectually respectable distinction can be drawn.

Paul Stimpson was seriously injured when a Land Rover carrying passengers overturned while being driven by Wayne Curran. The vehicle had dangerously under-inflated rear tyres, for which Land Rover admitted negligence, and a front off-side tyre whose negligent assembly by Exel Logistics caused progressive deflation. At first instance, His Honour Judge Alistair MacDuff acquitted Mr Curran of negligent driving, found both Land Rover’s and Exel’s negligence causative, and apportioned responsibility two-thirds to Exel and one-third to Land Rover.

Exel appealed the findings concerning Mr Curran, causation, and apportionment. The central issues were whether Mr Curran should have checked or noticed the tyre condition, whether the front tyre failure caused the accident, and how responsibility should be divided between the two negligent defendants.

1. Disposition. The appeal was allowed only on apportionment. The findings that Mr Curran was not negligent and that Exel’s negligent assembly of the front off-side tyre was causative were upheld.
2. Driver’s duty. Regulation 27(1)(b) of the Road Vehicles (Construction and Use) Regulations 1986 created an absolute statutory duty and a strict offence. It did not guide the civil standard of care in the way considered in Franklin v The Gramophone Company Ltd [1948] 1 KB 542, because the statutory obligation was absolute. Nor did the relevant statutory provisions create a private right of action for damages. Phillips v Britannia Hygienic Laundry Co Ltd [1923] 2 KB 832 and Tan Chye Choo & Ors v Chong Kew Moi [1970] 1 All ER supported that conclusion, with Coote & Anor v Stone [1971] 1 All E R 657 cited in the same connection.
3. The question whether Mr Curran was negligent remained governed by the reasonable man test. His admission that he should have checked the tyres, and expert opinions that tyres should be checked, did not determine civil liability. Given the vehicle’s apparently immaculate condition and known maintenance by a conscientious Land Rover employee, the judge was entitled to find that a reasonable driver would not necessarily have checked the pressures. There was likewise no evidential basis for finding that the earlier wobbling incidents should have put Mr Curran on notice of the instability.
4. Causation. The rear tyre under-inflation created serious latent instability but did not itself initiate the accident. The expert evidence entitled the judge to find that the front off-side tyre had progressively deflated during the journey and precipitated the loss of control, while the rear tyre condition materially aggravated the subsequent fish-tailing and overturning. The absence of an observed initial movement to the right did not defeat that conclusion. Driver reactions, power steering, and the interaction of the defects made the precise sequence uncertain, but the finding was based on the totality of the evidence and the balance of probabilities. It was not the impermissible reasoning criticised in Rhesa Shipping Co. SA v Edmunds [1985] 1 WLR 948.
5. Apportionment. The court normally affords a trial judge a wide margin of judgment. Nevertheless, apportionment requires consideration of both blameworthiness and causative potency in relation to the accident and its consequences. Exel’s egregious assembly error and Land Rover’s failure to maintain the rear tyres were each substantial causes, and there was no intellectually respectable basis for treating Exel as twice as blameworthy. Exel and Land Rover were therefore held equally responsible.

1. Court of Appeal (Civil Division) In [2004] EWCA Civ 1249, the court upheld the acquittal of Wayne Curran and the finding of causation against Exel Logistics Ltd, but varied the apportionment so that Exel and Land Rover were equally responsible.
2. First-instance decision His Honour Judge Alistair MacDuff found Land Rover and Exel causatively negligent, acquitted Mr Curran, and apportioned responsibility two-thirds to Exel and one-third to Land Rover.