Dorning v Personal Representative of Paul Rigby (Deceased)

Where negligence by a lead road user creates an immediate emergency, a following road user’s instinctive reaction may be a causally effective response, even if the claimant also relies on debris. A court must address each material causation case advanced and give reasons for rejecting it. The leader’s failure does not by itself establish that the follower would also have failed. Contributory negligence is measured by the parties’ relative blameworthiness and causative potency. A claimant’s proximity may justify a deduction for insufficient reaction time, but responsibility may remain substantially with the person who created the emergency.

Andrew Dorning was injured after the motorcycle immediately ahead of him crossed the carriageway and collided head-on with an oncoming BMW. He claimed that the collision created an emergency which caused him to brake and lose control, alternatively that debris caused the accident. Burnley County Court, before Mr Recorder Freeman, dismissed the claim, finding no relevant debris and concluding that the claimant was wholly responsible. The Court of Appeal considered whether the recorder had failed to address the alternative emergency-based case, whether that emergency caused the accident, and the extent of any contributory negligence.

1. Disposition. Ward LJ, with whom Lawrence Collins and Toulson LJJ agreed, held that the recorder’s judgment was unsafe. The recorder had treated debris as the only causative case and failed to determine the alternative case that the claimant lost control after reacting to the collision and resulting emergency. The appeal was therefore allowed. There was sufficient material for the Court of Appeal to determine the issues itself rather than remit them.
2. Emergency and causation. The evidence established an immediate emergency caused by the deceased’s head-on collision with the BMW. The claimant’s evidence that he was stunned and braked hard was not rejected. It was corroborated by evidence of emergency braking in the motorcycle’s suspension and by the experts’ accounts of how hard braking while negotiating a left-hand bend could cause the motorcycle to slide away. The absence of debris in the claimant’s path did not answer the alternative causation case.
3. Counterfactual analysis. The question was whether the claimant would have negotiated the bend safely but for the collision. The recorder had inferred that the claimant would have failed because the deceased had failed. That inference was unjustified. There was no evidence that both motorcycles were travelling at the same speed, and the evidence concerning their gears, speed, positioning and the experts’ views indicated that the claimant would probably have negotiated the bend safely absent the emergency.
4. Contributory negligence. The relevant test was the parties’ relative blameworthiness and causative potency, applying Reeves v Commissioner of Police for the Metropolis [2000] 1 A.C. 360, 371. The deceased bore substantially greater responsibility because his negligence created the emergency. The claimant’s proximity gave him less time to recover from the shock and react safely, and justified a deduction of 20 per cent for contributory negligence. The agreed damages were reduced accordingly.

1. Court of Appeal (Civil Division): [2007] EWCA Civ 1315. Appeal from the county court was allowed, and the agreed damages were reduced by 20% for contributory negligence.
2. Burnley County Court: Mr Recorder Freeman dismissed the personal injury claim on 1 December 2002.