Davis v Schrogin

Contributory negligence by an overtaking driver is fact-sensitive. The relevant question is when the driver was, or should have been, alerted to danger, not whether overtaking itself was imprudent. Where a vehicle emerges suddenly and without proper observation, and the overtaking driver is so close that no evasive action could avoid impact, there is no causal basis for a reduction. Any excess speed must have contributed to the collision. An appellate court should also be slow to interfere with primary factual findings based on witness evidence.

The claimant was seriously injured when his motorcycle collided with the defendant’s car on the A40. Both were travelling west. The claimant was overtaking a queue of traffic when the defendant moved towards the kerb and began a U-turn across the opposing lane without looking in the claimant’s direction.

Leeds County Court, before His Honour Judge Corrie, found the defendant solely to blame. It rejected contributory negligence, holding that the claimant had no time to avoid the collision and that any alleged excess speed was not causative. The defendant appealed, challenging findings concerning his irritation and the claimant’s opportunity to react.

Appeal dismissed with costs.

1. The defendant’s negligence in making a U-turn without looking properly, or at all, to his right was conceded at trial and was not challenged on appeal.
2. Contributory negligence is not established merely because a claimant was overtaking. The relevant question is when the overtaking driver was alerted, or should have been alerted, to danger ahead. The earlier authorities were fact-specific and did not establish that every overtaking driver is contributorily negligent.
3. The Court of Appeal was slow to interfere with primary findings because the trial judge heard the evidence and saw the witnesses. The judge was entitled to find that the defendant’s irritation materially contributed to the manoeuvre and that the collision followed almost immediately after the claimant first saw the car move towards the kerb.
4. The suggested five-to-ten-second interval was not accepted by the trial judge. On the accepted findings, the claimant was approximately five car lengths from the impact when the defendant began the manoeuvre. The submission that he must have been further away because of his speed was not made at trial, and the court considered such calculations unsafe.
5. The claimant was not required to anticipate both an unexpected U-turn and the absence of any pause to look in his direction merely because the car moved towards the kerb. Once he was found to be so close that he could not avoid the collision, there was no causal basis for contributory negligence. Even materially lower speed would have made no difference.

1. Court of Appeal (Civil Division): In [2006] EWCA Civ 974, dismissed the defendant’s appeal with costs.
2. Leeds County Court: His Honour Judge Corrie held the defendant solely to blame and rejected contributory negligence.