Hamilton v O'Kane & Anor

In assessing contributory negligence, each party’s conduct must be examined for its actual contribution to the collision and for relative blameworthiness. Alcohol consumption or speed cannot be included merely as a general course of conduct or because they might have impaired driving. Their causative connection to the accident must be established. Where the parties’ blameworthiness and causative effects cannot fairly be separated, equal apportionment is appropriate. An appellate court should respect factual and credibility findings, but may interfere where the trial judge relied on causatively irrelevant matters or failed to give proper weight to material findings.

Hamilton v O'Kane & Anor arose from injuries suffered by a pillion passenger in a collision between a motorcycle and a car. The recorder found both drivers negligent, attributing 80% responsibility to Mr O’Kane and 20% to Mrs Perry. Mr O’Kane appealed the apportionment. The Court of Appeal upheld the findings that he had made an exaggerated swerve and that Mrs Perry had stopped before emerging. The central issue was whether the recorder had properly assessed relative responsibility by considering alcohol, speed and road position, and whether liability should instead be divided equally.

The appeal was allowed unanimously. Lord Justice Ward delivered the leading judgment, Lord Justice Wilson agreed, and Lord Justice Rimer agreed with both judgments.

1. The recorder was entitled to accept Mrs Boxall’s evidence that Mr O’Kane made an exaggerated and unnecessary swerve, and Mrs Perry’s evidence that she had stopped at the junction. The Court of Appeal would not interfere with those credibility-based findings merely because it might assess the evidence differently.
2. The recorder’s reliance on Mr O’Kane being over the alcohol limit and travelling at about 30 miles per hour was problematic. There was no sufficient explanation of how either factor contributed causatively to the collision. Even if alcohol or speed contributed to the swerve, the causative issue remained the swerve itself. The description of the driving as a course of conduct or loss of control did not establish causation.
3. The recorder’s conclusion that Mr O’Kane was driving along the centre of the road was difficult to reconcile with the accepted evidence that he swerved into the centre of the road. The apportionment exercise was therefore flawed.
4. Mrs Perry had a duty not to emerge from the minor road onto the major road unless it was clear and safe. Her failure to keep a proper lookout was causative because, had she seen the motorcycle, she would have waited. Mr O’Kane was also causatively at fault because he swerved onto the wrong side of the road.
5. In assessing relative responsibility, the parties could not be separated in terms of either blameworthiness or causative effect. The proper apportionment was therefore 50% against each. The recorder’s 80/20 apportionment was set aside.

• Court of Appeal (Civil Division) — Allowed the appeal and apportioned responsibility equally between Mr O’Kane and Mrs Perry: [2009] EWCA Civ 931.
• Southampton County Court — Mr Recorder C G Gardner QC found the claim proved against both defendants and apportioned liability 80% to Mr O’Kane and 20% to Mrs Perry.