Whiteford v Kubas UAB

A driver is not negligent merely because a large vehicle travels on or slightly over the centre line of a narrow country road. The question is whether the driver acted as a reasonable and prudent driver would have acted in the circumstances, without imposing a counsel of perfection or judging conduct with hindsight. A modest margin from the edge of the road may be reasonable where driving close to the edge would create its own risks. The assessment remains subject to factors such as speed and the ability of other road users to avoid collision. Where a motorcyclist could safely negotiate the bend by taking the proper line, the lorry driver’s position did not establish breach of duty on the facts.

The claimant, riding a motorcycle, collided with an articulated lorry approaching on a narrow country road. The lorry was owned by the defendant and driven by its servant or agent. The Cambridge County Court, after trial before Mr Recorder Foy QC, found primary liability against the defendant and assessed the claimant’s contributory negligence at 50 per cent.

The defendant appealed, arguing that the driver was not negligent or, alternatively, that the claimant’s contribution should have been assessed at 80 per cent. The central issue was whether the lorry’s position on or slightly over the centre line amounted to a breach of the driver’s duty of care.

Appeal allowed; claim dismissed. The Recorder’s finding of primary liability was based on an assessment of negligence on primary facts. Although the Court of Appeal could in principle substitute its own judgment, it approached departure from the trial judge’s assessment with caution because the Recorder had heard the evidence, including the expert evidence.

1. The applicable standard was that of a reasonable and prudent driver in the circumstances existing at the time. The court had to avoid a counsel of perfection and the use of hindsight, consistently with Ahanonu and South East London and Kent Bus Company Limited [2008] EWCA Civ 274.
2. The road was narrow and the lorry’s lane was barely wide enough for the vehicle. In those circumstances, travelling on or just beyond the centre line could be reasonable. Driving on or extremely close to the edge line would itself create risks, and the driver could not properly be criticised for retaining a modest margin from the edge.
3. That conclusion was subject to speed and the surrounding circumstances. The Recorder found no excessive speed, and there was no suggestion that an approaching car could not have braked or manoeuvred to avoid collision. A motorcycle could have passed safely if it had taken the proper line around the bend.
4. The lorry’s slight encroachment therefore did not establish breach of duty. To find negligence would impose an unacceptably high standard on the driver. Lord Justice Laws agreed with the reasons given by Lord Justice Richards.

• Court of Appeal (Civil Division): [2012] EWCA Civ 1017 allowed the defendant’s appeal and dismissed the claim.
• Cambridge County Court: Mr Recorder Foy QC found primary liability against the defendant and assessed the claimant’s contributory negligence at 50 per cent.