McIntosh v Harman

A motorist must drive with the care of a reasonable and competent driver, taking account of the road, visibility, traffic conditions and the vehicle’s capabilities. A driver who sees apparent headlights ahead must reassess the situation when the lights do not move as expected or other features indicate a hazard. Excessive speed, lack of attention, or both may establish negligence even where the vehicle is within the speed limit. Contributory negligence depends on the claimant’s actual causal contribution to the accident. Comparisons with other apportionment cases provide only general assistance, because each case turns on its facts and the causal potency of the established negligence.

The claimant, a police officer, was injured when the defendant’s car collided head-on with her stationary marked police vehicle on an unlit semi-rural road. The police vehicle was positioned facing oncoming traffic and illuminated by take-down lights, but its headlights and sidelights were off when the defendant approached. The claimant alleged negligent driving. The defendant denied negligence and alleged contributory negligence, including improper positioning and inadequate lighting of the police vehicle.

The court determined whether the defendant should reasonably have identified the hazard earlier and whether the claimant’s conduct contributed to the collision.

1. Liability. The defendant was negligent. Although he initially assumed that the lights ahead belonged to an approaching vehicle, that assumption ceased to be reasonable after he cleared the brow of the hill. The driveway lighting, centre lines and cat’s eyes provided reference points showing that the lights were stationary and positioned in his path. He should therefore have identified the hazard within seconds.

2. The defendant was travelling on an undulating, unlit semi-rural road with a brow and several driveways. He knew that the car lacked ABS brakes and power steering. These circumstances required an adjustment of speed. A speed of about 40 to 50 mph was considered safe at the relevant point. It was unrealistic to require travel at 27 or 30 mph merely to stop within the range of dipped headlights, but driving at 60 mph or anything like it was inappropriate. The defendant should have reduced speed further or used full beam if uncertain of what lay ahead.

3. The defendant should have been able either to stop within the available distance or to steer around the police vehicle. His late emergency braking caused the car to skid straight into the collision. Lack of attention, excess speed, or a combination of both was therefore established as a cause of the accident.

4. Contributory negligence. The claimant’s decision to stop and position the police vehicle was not negligent, and the use of blue lights and take-down lights was not criticised in the circumstances. She had, however, accidentally switched off the sidelights. That contributed to the defendant’s initial mistaken assumption that he was seeing oncoming headlights. The claimant was accordingly found 30% contributorily negligent.

5. The claim therefore succeeded on liability, subject to a 30% reduction for contributory negligence. Counsel were invited to agree the consequential order and any further directions.