Askey v Wood

For contributory negligence, causation is assessed against the claimant’s actual conduct, including a loss of control caused by excessive speed. A rider cannot avoid responsibility by showing that the accident might still have occurred at a particular hypothetical speed, where that speed is not established as safe for the road and conditions. A safe speed permits a driver or rider to take reasonable steps to avoid accidents caused by other road users’ failures. The apportionment of responsibility is an evaluative judgment. The appellate court should not interfere where the apportionment falls within the range reasonably open to the trial judge.

A motorcyclist and a car collided at a blind bend on a country road. The motorcyclist was travelling at about 60 miles per hour, lost control before seeing the car and was seriously injured. The car was approximately one metre over the centre line. The trial judge found both parties negligent and held that their negligence was equally causative and blameworthy, apportioning responsibility equally for the motorcyclist’s damages.

The motorcyclist appealed, arguing that his excessive speed did not cause or contribute to the damage and that the apportionment should instead favour him. The Court of Appeal considered causation, the proper approach to hypothetical safe-speed evidence and the permissible scope of appellate review of apportionment.

1. Appeal dismissed. The trial judge was entitled to find that the motorcyclist’s excessive speed caused him to lose control before seeing the car. That loss of control meant that he could take no steps to avoid the accident. The contention that the accident would still have occurred at a supposed safe speed was unhelpful because the evidence did not establish that 40 miles per hour was a safe speed for this road, its blind right-angle bend and the obscured view.
2. Lord Justice Longmore held that, even if the motorcyclist would have come off in any event, it was speculative to conclude that he would not have collided with the car or another solid object, or avoided serious injury. It was therefore unsurprising that the trial judge had not addressed that scenario specifically.
3. Lord Justice Chadwick explained that a safe speed is a speed at which a driver or rider can take steps to avoid an accident in circumstances where other road users may fail to comply with their own obligations. The motorcyclist’s partial responsibility was consequently established under section 1(1) of the Law Reform (Contributory Negligence) Act 1945.
4. The equal apportionment was a fact-sensitive evaluative judgment. Although another judge might have chosen a different division, 50/50 was within the range reasonably open to the trial judge, so the Court of Appeal would not interfere.
5. On costs, the court declined to depart from the usual order. ADR limited to liability was unlikely to assist while the parties lacked, at least in broad terms, the quantum figure to which the agreed apportionment would apply. The respondent was awarded the appeal costs, summarily assessed at £3,000 plus VAT.

• Court of Appeal (Civil Division) — dismissed the appeal and ordered the appellant to pay the respondent’s costs, summarily assessed at £3,000 plus VAT.
• Leeds County Court — His Honour Judge Bush found both parties negligent and equally responsible in law for the accident and the motorcyclist’s damages.