Smith v Kempson

A driver emerging from a minor road onto a major road owes a high standard of care, but is not subject to strict or absolute liability. A court may find a breach of that standard on the balance of probabilities even where it cannot identify, or has not identified, the precise act or omission constituting the fault. The possible conclusions are that the driver exercised reasonable care, breached the required standard, or that the claimant has failed to prove breach. The burden remains on the claimant. The unusual facts of another case, including negligent or reckless driving by the motorcyclist, do not establish a general rule that the manoeuvre is acceptable.

The defendant appealed under CPR 52.11(3)(a) against HHJ Redgrave’s decision of 22 July 2010, which awarded the claimant damages for negligence arising from a road traffic collision. The defendant had emerged from a minor road onto a major road where her view was obstructed by parked vehicles and collided with the claimant’s motorcycle. The claimant was travelling along the major road in the opposing lane because parked vehicles obstructed the normal lane.

The trial judge found that the claimant’s driving was not below the required standard and that the defendant had pulled out when it was unsafe to do so. The central issues were whether the judge had applied a test of strict liability and whether a finding of negligence required identification of the precise act or omission constituting the breach.

The appeal was dismissed.

1. The trial judge had correctly applied the civil standard of proof. A conclusion that the accident was caused by the defendant’s falling below the standard of a reasonable driver was sufficient if reached on the balance of probabilities. The judge had not imposed absolute or strict liability.
2. A driver emerging from a minor road onto a major road must meet a high standard of care. The possible conclusions are that the driver exercised all reasonable care, that the driver fell below the required standard, or that the judge could not decide and the claimant therefore failed on the burden of proof. If both drivers are negligent, the court may then consider apportionment.
3. It is not essential for a judge to identify precisely the act or omission constituting the fault before finding that the high standard of care was breached. The trial judge’s conclusion that the defendant pulled out when it was unsafe to do so was legally sufficient.
4. Farley v Buckley was distinguishable. Its result depended on unusual facts, including the motorcyclist’s reckless driving, and it was not authority for a general proposition that emerging from a minor road at low speed is ordinarily acceptable.
5. Worsfold v Howe supported the conclusion that a finding of breach may stand where the circumstances establish a failure to meet the high duty of care, even without a precise description of the fault. The defendant’s sympathy-producing complaint that she had not been told exactly what she did wrong did not justify allowing the appeal.

1. High Court (Queen's Bench Division): appeal by the defendant against HHJ Redgrave’s decision of 22 July 2010. The appeal was dismissed.