Gray v Gibson

In a road-collision claim, the court must determine separately whether the defendant was negligent and whether the claimant was contributorily negligent. It is wrong to begin with an assumption of shared fault and proceed directly to apportionment.

A lorry driver crossing the middle line while rounding a bend has a particular duty of care. He should travel at a speed that enables him to stop within the visible distance. A driver keeping to her own side of the road is not negligent merely because she fails to foresee that an oncoming lorry will cross the line and fail to take that precaution.

Gray v Gibson arose from a collision between the appellant’s car and the respondent’s lorry on a narrow country road. The County Court found the respondent liable for driving too fast, but held the appellant contributorily negligent for driving at about 30 miles per hour around the bend, reducing her recovery by 40 per cent.

The appellant challenged both the finding of negligence and the apportionment. She argued that the judge had wrongly begun from a presumed 50/50 division of responsibility and had failed to assess the parties’ respective causative potency. The central issue was whether the appellant was negligent at all.

Lord Justice Longmore gave the judgment, with Lord Justices Patten and Christopher Clarke agreeing.

1. Approach to liability. A judge must first assess whether the defendant was negligent and then, if relevant, whether the claimant was negligent. Beginning with an assumption that both parties are negligent and merely deciding where to draw the apportionment line is the wrong approach. Although the trial judge had more or less followed the correct sequence in his final judgment, his earlier stated starting point created legitimate uncertainty.
2. Responsibility of the lorry driver. The respondent’s lorry was materially over the middle of the narrow road while rounding a bend. A lorry driver in that position has a particular duty of care and should not drive at a speed at which he cannot stop within the visible distance.
3. Responsibility of the appellant. The appellant was driving well on her own side of the road. In the circumstances, she could not reasonably be expected to foresee that an oncoming lorry would cross the middle line and fail to take the obvious precaution. Her speed of about 30 miles per hour did not make her negligent.
4. It was therefore unnecessary to assess the cumulative causative potency of the parties’ conduct or to consider contributory negligence. The appeal was allowed and the respondent was held 100 per cent liable for the consequences of the accident.

1. Court of Appeal (Civil Division) — In [2014] EWCA Civ 355, the appeal was allowed. The appellant was held not negligent and the respondent was held 100 per cent liable.
2. County Court sitting at Stoke-on-Trent — District Judge Schroeder found the respondent liable for driving too fast, but assessed the appellant’s contributory negligence at 40 per cent, allowing recovery of 60 per cent of her damages.