McGeough v Thomson Holidays Ltd.

Where a vehicle under a defendant’s management leaves its carriageway or enters the path of oncoming traffic, that occurrence may provide prima facie evidence of negligence. A skid or poor road surface does not, by itself, answer the case. The defendant must provide an explanation consistent with reasonable care. If the facts are sufficiently established, negligence is determined on those facts. Speed must be assessed against known conditions, including rain, road quality, gradients, bends and the driver’s experience. The approach in [1970] RTR 365 was confined to its materially different icy-road facts.

Mrs Christine McGeough claimed damages from Thomson Holidays Limited for injuries sustained as a passenger in a coach accident in Turkey. The coach crossed into the path of oncoming traffic while descending a bend in torrential rain and collided with a Fiat Palio. Vicarious liability and jurisdiction were not disputed.

The county court found that the road was barely acceptable, the driver was familiar with it, and he had been travelling at 35–40 kph. Judgment was entered for Mrs McGeough, with damages to be assessed. Thomson Holidays appealed, arguing that poor road conditions and rain caused an unavoidable loss of grip. The central issue was whether the judge was entitled to infer negligent driving.

1. Appeal dismissed. The trial judge was entitled to find that the coach driver was travelling too fast for the conditions and that his driving caused the loss of control.
2. The governing principles were those identified in Barkway v South Wales Transport Company Limited [1950] 1 All ER 392. Where a vehicle under the defendant’s management leaves the road or moves into the path of oncoming traffic, there is prima facie evidence of negligence. Proof of a skid does not by itself displace that inference. The defendant must show that the skid occurred without default. Where the facts are sufficiently known, the court determines whether negligence should be inferred from the established facts.
3. The judge’s factual findings were open to him. The road surface was at the bottom end of acceptability, the rain was torrential, and the driver was very familiar with the route and its problems. A speed of 35–40 kph was excessive in those circumstances; 15–20 kph was closer to the appropriate speed. The driver was not confronted with an unforeseeable hazard such as snow or ice. The decision in Custins v Nottingham Corporation [1970] RTR 365, concerning careful driving on an icy road, did not govern this case.
4. The driver’s conduct after losing control was not criticised, and whether the crash barrier was struck was immaterial. The Turkish conviction was not relied upon to establish civil liability.
5. Lord Justice Pill added, obiter, that mediation should not be encouraged where there is no real possibility that it will assist. In such circumstances, third-party mediation may place additional pressure on a party with a favourable judgment, whereas negotiation can be conducted between legal advisers.

• Court of Appeal (Civil Division) — [2007] EWCA Civ 1509: dismissed the appeal and upheld the county court’s liability judgment.
• Luton County Court — judgment of HHJ Everall QC dated 3 April 2007: judgment for Mrs McGeough against Thomson Holidays Limited, with damages to be assessed.