Lac & Ors v Clayton

Contributory negligence after a road accident depends on whether, in the particular circumstances, the claimant failed to take reasonable care for personal safety. People who have just experienced a frightening incident may be shocked or unsettled and unable to make fine judgments, especially where the safer course is not immediately obvious. The Highway Code may provide useful guidance even where its literal provisions do not apply, but it does not impose a higher or different standard of care. A first-instance court is entitled to make the evaluative judgment, particularly after seeing the witnesses, and the appellate court should not interfere without demonstrated error. On these facts, remaining near the damaged vehicle was not contributory negligence.

The defendant appealed from the decision of His Honour Judge Seymour QC in the Queen’s Bench Division on 20 May 2008. The defendant admitted primary liability for a collision in which a stationary vehicle and three people beside it were struck by his out-of-control car. He contended that the injured claimants had contributed to their injuries by failing to move further down the flyover, relying in part on the Highway Code. The central issue was whether their conduct, in the immediate aftermath of the earlier incident and in the prevailing road conditions, amounted to contributory negligence.

Lady Justice Smith delivered the judgment, with Lord Justice Mummery and Lord Justice Hughes agreeing. The appeal was dismissed.

1. Highway Code. Section 38(7) of the Road Traffic Act 1988 permits a failure to observe the Highway Code to be relied upon in civil proceedings as tending to establish liability. Although paragraphs 249 and 257 of the Code did not apply directly because the accident did not occur on a motorway and there was no hard shoulder, their guidance could sensibly be adapted to the factual situation as a matter of common sense. The Code did not impose any higher or different standard of care than the ordinary standard relevant to contributory negligence (paras [8]–[15]).
2. Assessment of conduct. The trial judge was entitled to find that the three men had been shaken by the events, had only recently left their vehicle, and could not reasonably be expected immediately to make fine judgments about their safety. The fact that they knew the road was slippery and that further collisions were possible did not compel a finding of negligence. The assessment remained fact-sensitive, and the trial judge had the advantage of seeing the witnesses (paras [16]–[18]).
3. Choice of position. A safer position may probably have existed further down the slope, but it was not immediately obvious where the safest place was. Choosing it required careful thought about the most likely manner in which another accident might occur. In those circumstances, the men were not negligent in remaining by the vehicle (paras [19]–[21]).

The order was: appeal dismissed.

1. Court of Appeal (Civil Division): On 3 February 2009, the court dismissed the defendant’s appeal, holding that the claimants had not been contributorily negligent: [2009] EWCA Civ 106.
2. Queen’s Bench Division: His Honour Judge Seymour QC held on 20 May 2008 that the claimants were not guilty of contributory negligence. The defendant appealed that holding.