DP & Anor v Bowyer

In deciding whether a driver was negligent, the court applies the standard of the reasonably competent and prudent driver in the circumstances actually confronting the driver. A driver is not required to adopt every additional precaution that might have avoided an unusual emergency where the other vehicle’s conduct gives no reasonable indication of the risk. Such precautions may be a counsel of perfection rather than part of reasonable care.

A breach of the Highway Code does not, by itself, establish negligence. The guidance is relevant to the assessment of reasonable care, but the court must decide whether the driving fell below the required standard in all the circumstances.

A pedestrian suffered profound injuries when a van collided with a car during an attempted overtake and then mounted the kerb. The car driver admitted that his negligent driving had contributed to the injuries and brought a Part 20 contribution claim against the van driver, who denied negligence.

Sharp J found that the van driver had been travelling at an appropriate speed, had no reason to anticipate that the car would turn right, and was not negligent. The car driver appealed, arguing that the van driver should have slowed, held back, sounded his horn or flashed his lights before overtaking, particularly because he entered a hatched area governed by paragraph 109 of the Highway Code. The central issue was whether those precautions were required of a reasonably competent driver.

1. Appeal dismissed. The van driver was not negligent in overtaking the slowing car at or about the speed limit. The car’s manner of driving indicated that it was slowing preparatory to stopping on the left, and a right turn was the last thing a reasonably competent driver could reasonably have expected ([2010] EWCA Civ 1011, paras [13]–[14]).
2. The standard was that of the reasonably competent and prudent driver. In the circumstances, reasonable care did not require the van driver to slow to the car’s speed, hold back, sound his horn or flash his lights before overtaking. Requiring those steps would have been a counsel of perfection, not a legal requirement ([2010] EWCA Civ 1011, para [14]).
3. Entering the hatched area did not alter the conclusion. It was reasonably necessary to enter it in order to overtake, and the court rejected the argument that paragraph 109 of the Highway Code had been breached. In any event, even a breach of the Code would not necessarily amount to negligence. The worn and unrepainted condition of the hatching also reduced the significance it would ordinarily have had ([2010] EWCA Civ 1011, para [15]).
4. The trial judge’s failure to address paragraph 109 expressly in her concluding reasoning was immaterial. The finding that the van driver’s speed was not excessive was also plainly open to her and did not warrant a finding of negligence, whether considered alone or with the other features of the case ([2010] EWCA Civ 1011, para [16]). The order was: appeal dismissed.

• Court of Appeal (Civil Division): dismissed the appeal from Sharp J’s decision that the van driver was not negligent and that the car driver was entirely to blame for the accident.