Hughes v Guise Motors Ltd

Contributory negligence requires proof that the claimant failed to take reasonable care for his own safety and that this failure contributed to the injury. The standard is objective, but conduct during an emergency must be judged in its context. A breach of the Highway Code does not, by itself, establish negligence. Where negligence is proved, apportionment depends on the parties’ respective responsibility for the damage, including the causative potency and blameworthiness of their conduct.

The claimant, a motorist, suffered catastrophic injuries when his car, which had lost engine power on the M62, was struck from behind by a recovery vehicle driven negligently by the defendant’s employee. Liability was admitted. The High Court was required to determine a preliminary issue concerning contributory negligence.

The defendant alleged that the claimant should have steered or coasted to the hard shoulder and should have left the vehicle. The central questions were whether the claimant’s conduct in attempting to reach safety and remaining in the vehicle was unreasonable, and, if so, how responsibility should be apportioned.

1. Contributory negligence. The defendant bore the burden of proving that the claimant failed, on the balance of probabilities, to take reasonable care for himself and that the failure contributed to his injury. The standard was objective, but the claimant’s conduct had to be judged in the emergency circumstances confronting him. A breach of the Highway Code would not, without more, establish contributory negligence (paras [8]-[9]).
2. Failure to reach the hard shoulder. The evidence did not establish where the engine had cut out or that the claimant could safely have reached the hard shoulder. Moving across lanes without engine power, in heavy traffic, would itself have been dangerous. The claimant was attempting to reach the hard shoulder, and his conduct was reasonable in the emergency. No contributory negligence was established (paras [24]-[27]).
3. Remaining in the vehicle. Given the position of the car, the traffic on the slip road and the absence of evidence of a safe opportunity to evacuate, remaining together in the vehicle was not unreasonable or negligent. That conclusion disposed of the defence (paras [28]-[31]).
4. Apportionment. No apportionment arose because the claimant was not negligent. Obiter, the judge stated that, had negligence been established, it would have been very low in comparison with the defendant driver’s responsibility and would have attracted no more than a 10 per cent reduction. The defendant driver’s conduct was more causally potent and blameworthy, although the collision could also have resulted from less serious carelessness by another road user (paras [34]-[39]).
5. Order. The claimant was found not to have been negligent, so no reduction in damages was made.